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CONSTITUTIONAL  CONVENTIONS 
THEIR  NATURE,  POWERS,  AND   LIMITATIONS 


CONSTITUTIONAL 

CONVENTIONS 

THEIR  NATURE,  POWERS,  AND  LIMITATIONS 

BY 

ROGER  SHERMAN  HOAR,  A.B.,  LL.B. 

FORMER  STATE   SENATOR  AND  ASSISTANT  ATTORNEY   GENERAL 
MEMBER  OP  THE   COMMISSION  TO   COMPILE   INFORMATION  AND   DATA 
FOR  THE  USE  OF  THE  MASSACHUSETTS  CONVENTION 
«  OF   1917 


"  A  frequent  recurrence  to  fundamental  principles 
is  absolutely  necessary,  to  preserve  the  blessings 
of  liberty." 


BSffggS  Sag   \ !  • 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1917 


^ 

\\(o 

Copyright, 

1917, 

By  Little,  Brown, 

and  Company. 

AU  rights  reserved. 
Published,  June,  1917 


-    .•<•;• 


Jprfnters 
S.  J.  Pakkhill  &  Co.,  Boston,  U.S.A. 


TO 
ELVA  STUART  HOAR 


372334 


PREFACE 

The  impendency  of  constitutional  conventions  in  Illinois, 
Indiana,  Massachusetts,  Nebraska  and  New  Hampshire,  has 
stirred  up  a  vast  amount  of  legal  and  lay  discussion  as  to  the 
nature  and  powers  of  such  bodies.  The  Illinois,  Nebraska  and 
New  Hampshire  conventions  are  expressly  authorized  by  the 
constitutions  of  those  States.  But  the  Indiana  and  Massachu- 
setts conventions,  not  being  so  authorized,  are  generally  re- 
garded as  being  revolutionary,  and  are  considered  by  many  to 
be  wholly  unconstitutional  and  void. 

Where  can  one  turn  for  authoritative  information  on  these 
questions?  The  only  treatise  exclusively  on  Constitutional  Con- 
ventions is  the  one  by  Judge  Jameson,  published  in  1867,  and 
to  some  extent  revised  in  1887.  Even  in  its  day,  this  book  was 
rendered  less  valuable  by  the  fact  that  it  was  written  to  support 
a  preconceived  theory,  in  the  interests  of  which  theory  Judge 
Jameson  freely  distorted  both  law  and  facts.1  To-day  this  book 
is  obsolete  (most  of  the  judicial  decisions  on  the  subject  being 
since  1887),  and  is  out  of  print. 

The  fact  that  there  is  no  modern  or  even  ancient  accessible 
work  on  the  nature  and  powers  of  constitutional  conventions, 
has  led  me  to  attempt  to  fill  the  gap  with  the  present  book,  which 
represents  no  preconceived  theory,  but  rather  merely  an  im- 
partial collection  of  all  the  available  law  and  precedent. 

1  "Judge  Jameson's  work  constructed  a  theory  regarding  constitutional  con- 
ventions, which  conformed  more  or  less  closely  to  the  facts,  but  in  which  the 
facts  were  subordinated  to  the  theory."  Dodd,  p.  vi.  But  Jameson,  speaking 
from  the  grave  as  it  were,  in  reply  to  Dodd  and  the  present  author,  says:  "which, 
in  substance,  is  an  intimation  that  this  work  is  what  the  Germans  call  a 
tendenz  work,  written  to  maintain  a  particular  thesis,  the  subordination  of  the 
Constitutional  Convention  to  the  law  of  the  land.  .  .  .  what  work  upon  history 
or  constitutional  law  was  ever  written  which  was  not  a  tendenz  work  in  the 
same  sense;  that  is,  written  from  some  special  point  of  view  to  establish  truths, 
of  which  the  author  is  strongly  convinced,  and  to  refute  errors  deemed  danger- 
ous, and,  if  not  combatted,  likely  to  prevail? "   Jameson,  pp.  656-657. 


Mil  PREFACE 

The  best  modern  treatment  of  the  subject  is  contained  in 
Dodd's  "Revision  and  Amendment  of  State  Constitutions" 
(1910),  which  however  is  written  more  from  an  historical  than 
from  a  legal  point  of  view,  and  which  deals  chiefly  with  meth- 
ods of  constitutional  amendment,  other  than  the  convention 
method.  I  am  greatly  indebted  to  this  work.  Jameson's  book 
also  has  been  constantly  before  me,  and  much  that  is  still  valu- 
able therein  has  been  used. 

But,  in  the  main,  I  have  consulted  original  sources  themselves, 
rather  than  any  author's  interpretation  of  them.  For  the  texts 
of  the  various  constitutions  themselves,  I  have  used  Thorp's 
compilation  which  was  published  by  Congress  in  1909. 

My  two  colleagues  on  the  Commission  to  Compile  Material 
for  the  Massachusetts  Convention  of  1917,  namely,  Professor 
William  B.  Munro1  of  Harvard  University  and  Lawrence 
B.  Evans,  Esq.,2  of  the  Boston  Bar,  also  Honorable  Robert 
Luce3  and  my  wife,  have  very  kindly  read  my  manuscript  and 
have  aided  me  with  many  valuable  suggestions. 

Roger  Sherman  Hoar. 

May  1, 1917. 

1  Head  of  the  department  of  government  at  Harvard;  author  of  several  well 
known  works  on  Canadian  and  Municipal  Government. 

2  Author  of  "  Leading  Cases  on  American  Constitutional  Law,"  and  other 
legal  and  historical  works. 

8  Creator  of  the  Massachusetts  direct  primary  system.  Former  Lieutenant 
Governor  of  Massachusetts. 


TABLE  OF  CONTENTS 

PAGE 

List  of  Cases  Cited     xiii 

References xvii 


CHAPTER  I 
The  Origin  of  Conventions [1 

The  four  sources  of  the  American  theory  of  constitutions;  the  first 
American  constitutions;  the  birth  of  the  convention  idea  (Massa- 
chusetts, New  Hampshire,  and  Federal) ;  provisions  for  amendment 
in  early  constitutions;  the  development  of  the  three  methods  now 
in  use. 

CHAPTER  II 

Fundamental  Principles 11 

Popular  sovereignty;  representative  government;  delegated  powers; 
the  right  to  change  government;  three  methods  of  exercising  this 
right;  the  electorate  as  a  representative  body;  factional  conventions; 
ingenious  theories  as  to  who  are  the  people;  classes  of  constitutional 
cases;  a  "state  of  nature." 


CHAPTER  III 

Analysis  of  Questions 30 

The  meaning  of  "constitutional";  other  definitions;  the  three  classes 
of  conventions;  authorized  conventions;  popular  conventions; 
spontaneous  conventions;  the  nature  of  conventions;  the  relative 
powers  of  departments  of  government;  a  forecast  of  this  book. 

CHAPTER  IV 

Popular  Conventions  are  Legal 38 

The  status  of  conventions,  when  not  mentioned  in  the  Constitution; 
instances  in  which  they  have  been  held;  the  Rhode  Island  doctrine; 
Attwill's  theory;  the  Massachusetts  theory;  conventions  valid  even 
though  expressly  prohibited;  perhaps  popular  in  nature  even  when 
expressly  authorized;  the  extraconstitutional  nature  of  conventions. 


TABLE   OF  CONTENTS 


CHAPTER  V 

PAGE 

Who  Calls  the  Convention? 58 

Who  enacts  the  convention  act;  under  the  Initiative;  when  authorized 
by  the  constitution;  when  the  legislature  calls  an  unauthorized  con- 
vention; when  the  legislature  submits  the  question  to  the  people; 
even  when  the  people  merely  elect  the  delegates;  legislative  stat- 
ute; the  need  of  legislative  assistance;  the  desirability  of  dispensing 
with  it. 

CHAPTER  VI 

Legislatures  as  Conventions 79 

In  Indiana  they  cannot  so  act;  in  North  Dakota  they  can;  comparison 
of  the  two  views. 

CHAPTER  VII 

Executive  Intervention 89 

The  convention  a  fourth  branch  of  the  government;  interference  by 
State  executive  veto  in  constitutional  cases;  in  extraconstitutional 
cases;  by  Federal  executive;  intervention  to  suppress;  intervention 
to  assist;  executive  recognition;  interference  with  pending  conven- 
tion. 

CHAPTER  VIII 

The  Convention  Act  not  Amendable   97 

Questions  involved;  the  validity  of  the  legislation;  who  enacted  the 
convention  act;  if  the  legislature  enacted,  they  can  amend  it;  if  the 
people  enacted,  the  legislature  cannot  amend  it;  but  legislatures 
have  done  so  on  occasions. 


CHAPTER  IX 

Legislative  Control 105 

Five  methods  of  control;  depends  on  who  passed  the  act;  cross-refer- 
ences on  powers  of  the  convention;  probably  no  right  to  restrict; 
instances  of  successful  restriction;  instances  of  unsuccessful  restric- 
tion; the  doctrine  of  reasonable  restrictions;  abolition  of  the  con- 
vention; indirect  interference;  recognition  and  non-recognition. 


CHAPTER  X 

Popular  Control 120 

Depends  on  who  passed  the  act;  the  people  can  control;  the  people  can 
amend,  if  they  passed  the  act;  if  the  legislature  passed  the  act;  in 
cases  of  doubt;  abolition  of  the  convention;  instructions  to  delegates. 


TABLE    OF   CONTENTS 


CHAPTER  XI 

PAGE 

Extraordinary  Powers  Claimed 128 

Convention  sovereignty;  certain  conventions  not  precedents;  inter- 
ference with  the  executive;  power  to  legislate;  legislation  under  the 
guise  of  constitutional  amendment;  submission  of  legislation  to  the 
people;  incidental  legislative  powers;  powers  granted  by  United 
States  Constitution  to  legislatures;  complete  usurpation  of  powers. 


CHAPTER  XII 

Judicial  Intervention 149 

In  proceedings  under  constitution;  in  extraconstitutional  proceedings; 
when  still  pending;  when  completed;  internal  convention  affairs; 
a  political  rather  than  judicial  question;  interference  with  usurped 
powers;  judicial  assistance;  judicial  advice. 

CHAPTER  XIII 

Does  the  Constitution  Apply? 165 

Cannot  prevent  the  convention;  constitutional  provisions  directory; 
mandatory  if  adopted  by  the  people;  constitution  not  applicable 
even  to  constitutional  proceedings;  Federal  Constitution  applicable. 


CHAPTER  XIV 

Internal  Procedure 170 

Judge  of  own  elections;  filling  vacancies;  expulsion  of  members;  hall; 
officers;  rules;  committees;  supplies;  records;  printing;  mainte- 
nance of  order;  binding  the  State's  credit;  reconvening  to  codify  the 
amended  constitution. 


CHAPTER  XV 

Status  of  Delegates 185 

Are  they  public  officers?  precedents  on  oaths;  anomaly  of  oath  of  mem- 
bers; of  assisting  officers;  privileges  and  immunities  of  individual 
delegates. 

CHAPTER  XVI 

Submission  of  Amendments 193 

History;  necessity  when  required  by  constitution;  when  required  by 
act;  when  not  required;  can  legislature  change  time?  can  convention 
change  time?  separate  submission;  enlarged  or  reduced  electorate; 
methods  of  submission. 


xii  TABLE   OF   CONTENTS 


CHAPTER  XVII 

PAGE 

The  Doctrine  of  Acquiescence 214 

Lapse  of  time;  government  acquiescence;  popular  acquiescence;  in 
constitutional  cases;  in  extraconstitutional  cases;  does  not  validate 
the  means. 


CHAPTER  XVIII 

Conclusions 220 

History;  fundamentals;  legality  and  source  of  conventions;  amending 
the  convention  act;  executive  intervention;  control  of  the  conven- 
tion; convention  sovereignty;  judicial  intervention;  the  constitu- 
tion; conduct  of  the  convention;  consent  of  the  governed. 

INDEX        232 


LIST  OF  CASES  CITED 

A. 

PAGE 

Armstrong  v.  Berkey,  23  Okla.  176 149 

Atty.  Gen.  v.  Tillinghast,  203  Mass.  539 187 

B. 

Birmingham  Ry.,  Ex  parte,  145  Ala.  514 122,  129,  141,  145 

Bott  v.  Secy,  of  State,  62  N.  J.  L.  107 206,  218 

Bradford  v.  Shine,  13  Fla.  393 52,  131,  144 

Bragg  v.  Tuffts,  49  Ark.  554 142 

Brittle  v.  People,  2  Neb.  198 79,  158,  215 


C. 

Carton  v.  Secy,  of  State,  151  Mich.  337  .  63,  90,  92, 107, 112, 134, 163,  198 

Chicago  v.  Reeves,  220  111.  274 83 

Collier  v.  Frierson,  24  Ala.  100 40,  150,  151 

Commonwealth  v.  Griest,  196  Pa.  396 81 

Commonwealth  v.  Kimball,  24  Pick.  359 25 

Cranmer  v.  Thorson,  9  S.  D.  149      153 

Ciimmings  v.  Missouri,  4  Wall.  277 207 

D. 

Denny,  Re,  156  Ind.  104 150 

Duncan,  Re,  139  U.  S.  449 25 

Durfee  v.  Harper,  22  Mont.  354 149 


E. 

Ellingham  v.  Dye,  178  Ind.  336  .    .     14,  42,  48,  64,  68,  74,  80-85,  87,  129 

F. 

Foley  v.  Dem.  Com.,  70  So.  104 162,  218 

Franz  v.  Autry,  18  Okla.  561 142,  152,  153 


XIV  LIST   OF   CASES   CITED 


G. 

|  PAGE 

Gibbes  v.  Railroad,  13  S.  C.  228 141,  145 

Goodrich  v.  Moore,  2  Minn.  61 23,  179 

Green  v.  Shumway,  39  N.  Y.  418 205 

Grigsby  v.  Peak,  57  Tex.  142 146 

H. 

Hatch  v.  Stoneman,  66  Cal.  632 150 

Holmberg  v.  Jones,  7  Ida.  752 149 

K. 

Kamper  v.  Hawkins,  3  Va.  20 3,  27,  28,  39,  56 

Knight  v.  Shelton,  134  Fed.  423 161 

Koehler  v.  Hill,  60  la.  543 149,  157,  158,  215 

L. 

La.  Ry.  v.  Madere,  124  La.  635 122,  124,  190 

Linde  v.  Robinson,  160  N.  W.  512 215 

Livermore  v.  Waite,  102  Cal.  113 83,  84,  150 

Loomis  v.  Jackson,  6  W.  Va.  613 69,  158,  215 

Luther  v.  Borden,  7  How.  1 94,  101,  157,  158,  162,  215 

M. 

McBee  v.  Brady,  15  Ida.  761 149 

McConaughty  v.  Secy,  of  State,  106  Minn.  392 149 

McCready  v.  Hunt,  2  Hill  Law  1   .     12,  63,  72,  121,  124,  135,  136,  137,  160 

McCulloch  v.  Maryland,  4  Wheat.  316 39 

McMullen  v.  Hodge,  5  Tex.  34 133 

Miller  v.  Johnson,  92  Ky.  589 112,  156,  183,  195,  215 

N. 
Nesbit  v.  People,  19  Col.  441 214 

O. 

Opinion  of  Mass.  Justices,  1917 50,  66,  99,  164,  167 

'Opinion  of  N.  Y.  Justices,  unreported 56,99,116,164 

Opinion  of  Justices,  3  Pick.  517 172 

Opinion  of  Justices,  6  Cush.  573  .     44,  45,  46,  64,  123,  164,  198,  199,  217 
Opinion  of  Justices,  115  Mass.  602 209 


LIST   OF   CASES  CITED  XV 

PAGE 

Opinion  of  Justices,  136  Mass.  578 209 

Opinion  of  Justices,  160  Mass.  586 64 

Opinion  of  Justices,  76  N.  H.  586 33,  164 

Opinion  of  Justices,  76  N.  H.  612 138,  164,  197 

Opinion  of  Justices,  14  R.  I.  649  ..    .     15,  33,  43,  46,  47,  49,  56,  57,  198 


P. 

Pac.  States  Tel.  Co.  v.  Oregon,  223  U.  S.  118 119,  162,  169 

Paving  Co.  v.  Hilton,  69  Cal.  479 149 

Paving  Co.  v.  Tompkins,  72  Cal.  5 149 

People  v.  Curry,  130  Cal.  82      149 

People  v.  Loomis,  135  Mich.  556 149 

People  v.  Militzer,  272  111.  387 210 

People  v.  Strother,  67  Cal.  624 149 

Plowman  v.  Thornton,  52  Ala.  559 141 


Q. 

Quinlan  v.  Houston  Ry.  Co.,  89  Tex.  356 144,  145,  146 


R. 

Reliance  v.  Prison  Com.,  161  Ky.  135 12 

Richards  v.  Whisman,  36  S.  D.  260 100 

Ridley  v.  Sherbrook,  43  Tenn.  569 94 


S. 

Schertz  v.  Bank,  47  111.  App.  124 143 

Scown  v.  Czarnecki,  264  111.  305 210 

Senate  File,  Re,  25  Neb.  864 149 

Smith  v.  Good,  34  Fed.  204 161 

Sproule  v.  Fredericks,  69  Miss.  898 90,  134 

State  v.  Am.  Sugar  Co.,  137  La.  407 40,  65,  68,  70,  123,  167 

State  v.  Brookhart,  113  la.  250 149 

State  v.  Brooks,  17  Wyo.  344 150 

State  p.  Capdevielle,  104  La.  561 70,  122 

State  v.  Cox,  3  Eng.  436 82 

State  v.  Dahl,  6  N.  D.  81 40,  48,  63,  67,  87,  93,  163 

State  v.  Davis,  20  Nev.  220 149 

State  v.  Favre,  51  La.  Ann.  434 73,  167 

State  v.  Neal,  42  Mo.  119 146,  207 

State  v.  Powell,  77  Miss.  543 149 

State  v.  Swift,  69  Ind.  505 149 

State  v.  Tooker,  15  Mont.  8 149 

State  v.  Tuny,  19  Nev.  391 149 


XVI  LIST   OF  CASES  CITED 


T. 

PAGE 

Taylor  v.  Beckham,  178  U.  S.  548 25 

Taylor  p.  Commonwealth,  101  Va.  829    ...    .       104,  112,  156,  199,  215 
Thomasson  v.  Ruggles,  69  Cal.  465 .     149 

W. 

Wells  v.  Bain,  75  Pa.  39  .    .  16,  17,  19,  24,  28,  32,  72,  74,  75,  76,  90,  109, 

117,  136,  137,  152,  160,  165,  170,  195,  213 

Weston  v.  Ryan,  70  Neb.  211 214 

Williams  v.  Suffolk  Ins.  Co.,  3  Sumner  220 157 

Wood's  Appeal,  75  Pa.  59  .    .  19,  73, 110,  111,  121, 124, 129, 136, 152, 155, 

159,  162 
Woods  v.  Woburn,  220  Mass.  416 210 

j:y. 

Young  v.  Duncan,  218  Mass.  346 210 


REFERENCES 

"Columbia  Dig.";  "Index-Digest  of  State  Constitutions."  Prepared 
by  Columbia  University,  and  published  by  the  New  York  Con- 
stitutional Convention  Commission,  1915. 

Dodd:  "The  Revision  and  Amendment  of  State  Constitutions."  Wal- 
ter Fairleigh  Dodd.    Johns  Hopkins  Press,  Baltimore,  1910. 

Holcombe:  "  State  Government  in  the  United  States."  Arthur  Norman 
Holcombe.    Macmillan  Co.,  1916. 

Jameson:  "Constitutional  Conventions."  John  Alexander  Jameson. 
Fourth  edition.    Callaghan  &  Co.,  Chicago,  1887. 

"N.  Y.  Revision  of  Consts.";  "Revision  of  the  State  Constitution." 
Published  by  the  New  York  Constitutional  Convention  Com- 
mission, 1915. 

Thorpe:  "Federal  and  State  Constitutions."  Francis  Newton  Thorpe. 
7  vols.    Government  Printing  Office,  Washington,  1909. 

"Trial  of  Dorr";  "Trial  of  Thomas  Wilson  Dorr  for  Treason."  George 
Turner  and  W.  S.  Burges.  B,  F.  Moore,  Printer,  Providence,  1844. 


CONSTITUTIONAL     CONVENTIONS 

Chapter  I 
THE  ORIGIN  OF  CONVENTIONS 

Constitutional  conventions,  as  a  means  of  amending  written 
constitutions,  are  distinctly  an  American  institution.  In  fact, 
written  constitutions  themselves  originated  in  this  country. 

The  idea  of  a  constitution  is  Anglo-Saxon.  The  word  is  used 
on  both  sides'  of  the  Atlantic  to  signify  something  superior  to 
legislative  enactments;  in  other  words,  a  body  of  fundamental 
principles  of  government  which  are  beyond  the  control  of  the 
Legislature. 

A  constitution  is  a  social  compact,  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the  whole 
people,  that  all  shall  be  governed  by  certain  laws  for  the  common 
good.1  In  other  words,  it  is  the  Anglo-Saxon  theory  that  gov- 
ernment is  in  some  way  based  upon  a  contract  between  the 
people  and  the  State. 

The  American  colonies,  however,  were  bound  not  only  by 
the  terms  of  the  unwritten  British  constitution,  but  more  di- 
rectly by  the  charters  or  other  written  instruments  whereby 
Great  Britain  directed  their  government.    These  charters,  of 
course,  became  suspended  the  moment  the  colonies  declared  \ 
their  independence,  as  did  also  the  operation  on  the  colonies  \ 
of  even  the  British  constitution  itself.   As  it  has  sometimes  been  * 
expressed,  the  colonies  reverted  to  a  state  of  nature.2 

It  was  inevitable  that  in  their  attempts  to  emerge  from  this 
state  of  nature  and  organize  a  new  social  contract,  each  colony 
should  make  its  contract  embody  the  fundamental  principles  of 
the  British  constitution,  and  that  they  should  promulgate  these 
contracts  in  written  form,  like  their  former  charters.    Several 

1  Mass.  Const.,  Preamble.  2  See  pp.  26-28,  infra. 


2  ,    CONSTITUTIONAL  CONVENTIONS 

of  tlie  colonies,  in  fact,  re-adopted  their  charters  to  serve  them 
as  constitutions.1 

The  political  experience  and  theories  of  the  colonists  thus 
supplied  four  principles:  (1)  The  employment  of  definite  written 
instruments,  prescribing  the  nature  and  form  of  government; 

(2)  the  idea  of  a  constitution  superior  to  ordinary  legislation; 

(3)  the  conception  of  certain  natural  rights  asserted  by  such  a 
constitution;  and  (4)  the  theory  of  the  social  contract.  The 
written  constitution,  born  in  America,  was  the  embodiment  of 
these  four  principles.2 

The  constitutional  convention,  as  we  know  it  to-day,  also 
developed  in  America.  It  is  true  that  governments  had  in  the 
past  been  changed  by  conventions  (i.e.  comings-together), 
but  these  had  always  been  unrepresentative  and  spontaneous. 
As  Braxton  says: 

The  first  and  crudest  conventions  were  in  no  sense  representa- 
tive bodies;  but  were  mere  voluntary,  irregular,  illegitimate  as- 
semblies of  individuals,  acting  on  their  own  motion  and  on  their 
own  behalf,  who  felt  themselves  sufficiently  powerful  to  resort  to 
the  ultimate  right  of  Revolution,  and  wrest,  by  violence,  from  their 
sovereigns,  such  governmental  concessions  as  they  desired.  The 
existence  of  such  bodies  was  neither  provided  for,  nor  recognized  by, 
the  laws  or  existing  social  system.  They  relied  merely  on  the  right 
of  vis  major  to  justify  their  actions  and  support  their  demands. 
Such  was  the  Convention  of  the  Barons  at  Runnymede  in  1215, 
that  framed,  and,  in  a  sense,  enacted,  Magna  Charta,  the  first 
faint  suggestion  in  England  of  a  written  constitution.8 

But  in  America  the  representative  convention  developed.  It 
was  a  step  as  far  beyond  Runnymede  as  our  constitutions  were 
beyond  Magna  Charta. 

The  first  American  constitutions  originated  in  a  variety  of 
ways.  In  order  to  understand  the  foundation  upon  which  each 
rested,  it  will  be  necessary  to  consider:  first,  the  origin  of  the 
Revolutionary  legislative  body  in  each  of  the  thirteen  States; 
and  secondly,  the  method  in  which  each  constitution  was  en- 
acted.   Only  three  States  went  through  the  form  of  continuing 

1  Massachusetts  until  1780;  Connecticut  until  1818;  Rhode  Island  until 
1842. 

*  Dodd,  pp.  2-3. 

1  A.  Caperton  Braxton  in  VII  "  Va.  Law  Reg.,"  79,  82. 


THE  ORIGIN  OF  CONVENTIONS  3 

the  charter  legislature,  to  wit:  Delaware,  Connecticut,  and 
Rhode  Island.1 

Massachusetts  is  usually  incorrectly  classified  as  being  among 
this  number,  owing  to  a  failure  to  appreciate  that  the  Provincial 
Congress  of  1774  was  not  a  continuation  of  the  General  Court  of 
the  preceding  June.2 

Similarly  with  Virginia.  We  learn  from  a  decision  of  her  own 
Supreme  Court  that  the  Revolutionary  government  was  not  a 
continuation  of  the  House  of  Burgesses.3  The  rest  of  the  States 
held  unauthorized  elections  with  little  or  no  pretense  at  legality.4 

In  nearly  all  of  the  States,  certain  more  or  less  voluntary 
organizations,  called  committees  of  safety,  shared  the  govern- 
ing power.5 

The  dissolution  of  the  constitutional  assemblies,  by  the  govern- 
ors appointed  by  the  crown,  obliged  the  people  to  resort  to  other 
methods  of  deliberating  for  the  common  good.  Hence  the  first 
introduction  of  convention:  bodies  neither  authorized  by,  or  known 
to  the  then  constitutional  government;  bodies,  on  the  contrary, 
which  the  constitutional  officers  of  the  then  existing  governments 
considered  as  illegal,  and  treated  as  such.  Nevertheless,  they  met, 
deliberated,  and  resolved  for  the  common  good.  They  were  the 
people,  assembled  by  their  deputies;  not  a  legal,  or  constitutional 
assembly,  or  part  of  the  government  as  then  organized.  .  .  .  They 
were,  in  effect,  the  people  themselves,  assembled  by  their  dele- 
gates, to  whom  the  care  of  the  commonwealth  was  especially,  as 
well  as  unboundedly  confided.6 

Regardless  of  the  legality  or  illegality  of  the  inception  of 
these  various  governing  bodies,  they  become,  by  virtue  of  mili- 
tary force  and  of  popular  acquiescence,7  the  de  facto  govern- 
ments of  their  respective  States. 

Let  us  now  consider  the  methods  in  which  these  de  facto 
governments  brought  about  the  establishment  of  written  con- 
stitutions.8 

1  Dodd,  p.  14;  Jameson,  pp.  113  and  128-129. 

*  George  Tolman,  "Preliminaries  of  the  Concord  Fight"  (1902),  p.  6. 

■  Kamper  v.  Hawkins  (1793),  3  Va.  20,  68-74. 

1  Jameson,  pp.  113, 114  n.  1, 119, 122, 126,  130, 132-134. 

5  Jameson,  p.  113. 

8  Kamper  v.  Hawkins  (1793),  3  Va.  20,  68. 

7  See  Chapter  XVII,  infra. 

8  The  following  classification  is  based  upon  Dodd,  pp.  24-25,  with  some 
regrouping,  however,  based  upon  an  analysis  of  the  full  accounts. 


4  CONSTITUTIONAL  CONVENTIONS 

In  eight  instances  the  legislative  body  adopted  and  pro- 
mulgated the  constitution  in  the  same  manner  in  which  it 
would  have  passed  a  mere  statute,  without  either  advance 
authority  from,  or  ratification  by,  the  people.1 

In  five  instances  the  action  was  taken  by  a  legislative  body 
expressly  authorized  thereto  by  popular  vote;  but  the  con- 
stitution was  not  submitted  in  any  manner  to  the  people.2 

In  four  instances  the  constitutions  were  enacted  by  the 
legislature  under  express  authority  from  the  people,  and  copies 
were  distributed  some  time  before  enactment,  in  order  to  give 
the  people  an  opportunity  to  object  and  suggest  changes.3 

In  one  instance,  the  legislature  submitted  a  constitution  to 
the  people  without  previous  authority,  but  it  was  rejected.4 

The  legislative  bodies  above  referred  to  were  in  some  cases 
legislatures  attempting  to  frame  constitutions,  and  in  other 
cases  conventions  exercising  legislative  powers.  The  distinction 
is  immaterial;  they  were  the  only  regular  legislative  bodies  of 
their  respective  States. 

In  three  instances,  constitutions  were  framed  by  special 
conventions,  separate  from  the  regular  legislative  bodies,  and 
were  submitted  to  the  people.5  These  three  conventions, 
together  with  the  conventions  which  framed  and  adopted  the 
Federal  Constitution,  mark  the  birth  of  the  constitutional 
convention  movement  in  this  country,  and  accordingly  deserve 
more  than  passing  notice. 

In  New  Hampshire  and  Massachusetts,  during  the  Revolu- 
tionary War  period,  there  was  developed  the  convention  as  we 
know  it  to-day;  that  is,  an  independent  body  for  the  sole  pur- 
pose of  framing  a  constitution,  and  submitting  it  to  a  vote  of 
the  people.  But  it  should  be  remembered  that  before  this 
development  took  place,  both  of  these  States  had  established 
fairly  stable  governments,  New  Hampshire  by  its  constitution 

1  North  Carolina  (April,  1776),  South  Carolina  (1776),  Georgia  (1776), 
Virginia  (1776),  New  Jersey  (1776),  and  the  continuation  of  the  charters  in 
Massachusetts,  Rhode  Island,  and  Connecticut. 

2  New  Hampshire  (1776),  Delaware  (1776),  Georgia  (1777),  New  York 
(1777),  and  Vermont  (1777).  Jameson  (pp.  128-130)  gives  Delaware  the  credit 
of  holding  the  first  regular  convention,  but  see  Dodd,  p.  15. 

1  Maryland  (1776),  Pennsylvania  (1776),  North  Carolina  (Dec.  1776),  and 
South  Carolina  (1778). 
4  Massachusetts  (1778). 
6  New  Hampshire  (1778  and  1781-1783)  and  Massachusetts  (1780). 


THE  ORIGIN   OF   CONVENTIONS  5 

of  1776,  and  Massachusetts  by  an  amended  form  of  its  colony 
charter.  In  neither  was  there  urgent  need  of  a  new  govern- 
ment ;  in  neither  was  there  an  aggressive  Tory  element.  Neither 
of  these  States  was  threatened  by  military  operations  at  the 
time.  In  neither  State  was  there  any  danger  to  be  apprehended 
from  the  creation  of  am  independent  convention  and  the  sub- 
mission of  its  work  to  a  vote  of  the  people. 

The  history  of  the  development  of  the  convention  method 
in  these  two  States  was  as  follows. 

Massachusetts,  unlike  Rhode  Island,  which  remained  under 
its  colony  charter  until  1842,  was  one  of  the  earliest  States  to 
adopt  an  independent  form  of  government.  In  the  spring  of 
1774,  Governor  Gage  forcibly  prorogued  the  Massachusetts 
legislature.  The  people  promptly  prepared  to  elect  a  pro- 
vincial congress  of  their  own  to  take  its  place.  To  offset  this 
move,  Gage  called  for  the  election  of  a  new  legislature.  The 
people  elected  practically  the  same  delegates  to  both  the 
provincial  congress  and  the  legislature,  whereupon  Gage  can- 
celled his  call.  Nevertheless,  the  legislature  met  and  adjourned 
over  to  merge  with  the  congress.  This  congress  and  its  successor, 
which  sat  for  five  months  in  1775,  reenacted  the  charter  in  a 
slightly  amended  form,  which  served  Massachusetts  as  a  con- 
stitution until  1780.  Under  it  the  Great  and  General  Court 
(i.  e.  the  legislature)  and  the  Governor's  Council  were  regu- 
larly elected  as  formerly,  the  latter  exercising  the  executive 
powers. 

Soon  after  the  Declaration  of  Independence,  steps  were 
taken  in  Massachusetts  toward  framing  a  new  form  of  govern- 
ment. In  accordance  with  a  recommendation  of  the  previous 
legislature,  the  two  branches  of  the  legislature  of  1777-1778 
met  together  as  a  convention  and  submitted  a  constitution, 
which,  however,  was  indignantly  rejected  by  the  electorate, 
because  they  resented  the  legislature's  assumption  that  it 
could  call  a  convention  without  first  obtaining  an  authorization 
from  the  people. 

In  the  following  year  the  chastened  legislature  called  upon 
the  voters  to  state  whether  they  wished  a  constitution  and 
whether  they  would  authorize  the  legislature  to  call  a  con- 
vention. The  vote  on  both  questions  was  affirmative,  and  the 
legislature  accordingly  called  the  convention  which  drafted 


6  CONSTITUTIONAL  CONVENTIONS 

the  present  Massachusetts  constitution.  This  constitution  was 
adopted  in  1780.1 

The  experience  of  New  Hampshire  was  very  similar.  In 
response  to  a  recommendation  by  the  Continental  Congress, 
the  provincial  congress  of  New  Hampshire  adopted  a  tem- 
porary constitution  on  January  5,  1776,  although  in  the  face 
of  strong  protest  from  many  parts  of  the  State.  The  agita- 
tion in  the  western  towns  became  so  serious  that  it  was  neces- 
sary for  the  provincial  congress  to  send  a  committee  to  assure 
that  section  that  the  form  of  government  adopted  was  purely 
temporary. 

Delegates  from  certain  of  the  towns  met  in  Hanover  in  June, 

1777,  and  passed  resolutions  that  any  permanent  plan  of  govern- 
ment should  be  framed  by  a  convention  convened  solely  for 
that  purpose.  Subsequent  constitutional  procedure  in  New 
Hampshire  followed  those  suggested  lines. 

The  legislature  of  1777  asked  that  the  various  representatives 
be  instructed  by  their  towns  as  to  the  expediency  of  holding 
a  convention.  Many  of  the  members  of  the  next  legislature 
were  so  instructed,  and  accordingly  it  was  voted  in  February, 

1778,  that  a  convention  be  held  in  June  of  that  year.  The 
convention,  called  by  virtue  of  this  vote,  drafted  a  constitution; 
but  it  was  rejected  by  the  people. 

This  procedure  was  repeated  in  calling  a  second  convention, 
which  met  in  1781  and  submitted  a  constitution,  which  also 
was  rejected.  The  same  convention  submitted  a  revised  copy 
in  1782,  and  a  second  revision  in  1783,  which  was  finally 
adopted.2 

As  already  said,  it  was  the  idea  of  a  separate  convention 
which  defeated  the  constitution  framed  by  the  Massachusetts 
legislature  in  1777-1778.    As  a  recent  writer  has  said: ' 

The  material  factor  which  defeated  the  constitution  was  the 
widespread  belief  that  the  only  convention  which  could  stand  for 
all  the  people  and  best  define  its  rights  and  determine  its  form 
of  government,  was  a  convention  consisting  of  delegates  to  whom 
the  powers  of  the  people  were  delegated  for  the  sole  purpose  of 

1  George  Tolman,  "  Preliminaries  of  the  Concord  Fight "  (1902) ;  1917  Manual 
of  the  General  Court  (Mass.),  pp.  86-87;  Dodd,  pp.  8-10;  Frothingham,  Const, 
and  Govt,  of  Mass.;  II  "Mass.  Law  Quarterly,"  1. 

2  Dodd,  pp.  3-a 


THE  ORIGIN  OF  CONVENTIONS  7 

framing  a  constitution,  and  not  a  body  of  representatives  entrusted 
at  the  same  time  with  other  duties.1 

Dodd  gives  to  the  towns  of  the  New  Hampshire  grants, 
meeting  in  Hanover  in  June,  1777,  the  credit  of  originating  the 
convention  idea.2  But  to  the  town  of  Concord,  Massachusetts, 
belongs  the  honor  of  antedating  the  towns  of  the  New  Hamp- 
shire grants.  On  October  21,  1776,  the  town  voted  on  the 
question  of  authorizing  the  legislature  to  frame  a  constitution: 

That  the  Supreme  Legislative,  either  in'  their  proper  capacity, 
or  in  Joint  Committee,  are  by  no  means  a  body  proper  to  form  and 
establish  a  Constitution,  or  form  of  Government;  for  reasons  fol- 
lowing: first,  because  Ve  conceive  that  a  Constitution  in  its  proper 
idea  intends  a  system  of  principles  established  to  secure  the  subject, 
in  the  possession  and  enjoyment  of  their  rights  and  privileges, 
against  any  encroachments  of  the  governing  part,  second,  because 
the  same  body  that  forms  a  constitution  have  of  consequence  a 
power  to  alter  it,  third,  because  a  constitution  alterable  by  the 
Supreme  Legislative  is  no  security  at  all  to  the  subject  against  any 
encroachment  of  the  governing  part  on  any,  or  on  all  of  their  rights 
and  privileges. 

Accordingly  they  recommended  the  calling  of  a  convention.3 

This  procedure  of  constitution-framing  by  a  convention 
chosen  for  that  express  purpose,  which  idea  was  originated  in 
Concord,  Massachusetts,  and  was  copied  by  the  New  Hamp- 
shire towns,  was  also  followed  in  Vermont  in  1786,  and  with 
respect  to  the  Federal  Constitution. 

Jameson  points  out  that  the  congress  which  framed  the 
Articles  of  Confederation  possessed  not  a  single  one  of  the 
elements  necessary  to  give  it  legitimacy  as  a  constitutional 
convention.4  The  body  which  framed  the  permanent  Constitu- 
tion of  the  United  States  was  scarcely  more  legitimate. 

The  Annapolis  convention  had  met  merely  to  settle  the 
commercial  disputes  of  the  American  States,  but  had  recom- 
mended that  the  succeeding  convention  at  Philadelphia  should 

1  Arthur  Lord  in  II  "  Mass.  Law  Quarterly,"  1,  5;  cf.  Journal,  Mass.  Conv., 
1779-1780,  p.  225. 

2  Dodd,  p.  6. 

3  "Mass.  Archives,"  Vol.  156,  No.  182.  A  facsimile  is  to  be  printed  in  the 
manual  of  the  Mass.  1917  Convention. 

4  Jameson,  pp.  147-148. 


8  CONSTITUTIONAL  CONVENTIONS 

consider  "other  objects  than  those  of  commerce.' '  Accord- 
ingly, a  convention  met  in  May,  1787,  at  Philadelphia,  "to 
devise  such  further  provisions  as  shall  appear  to  them  necessary 
to  render  the  constitution  of  the  Federal  Government  adequate 
to  the  exigencies  of  the  Union."  *  This  convention  was  really 
a  diplomatic  treaty-making  body,  rather  than  a  constitutional 
convention  in  the  purest  sense  of  the  term. 

But  the  conventions  of  the  eleven  States  which  ratified  the 
Constitution  were  all  regularly-called  constitutional  conven- 
tions. The  same  may  be  said  of  the  conventions  of  North 
Carolina,  Rhode  (Island,  and  Vermont,  which  ratified  the 
Constitution  after  it  was  declared  established.2 

So  much  for  the  origin  of  the  idea  of  a  written  constitution, 
and  for  the  employment  of  conventions  to  draft  these  instru- 
ments. Let  us  now  consider  the  growth  of  the  idea  of  the 
convention  as  a  method  of  amending  or  altering  constitutions 
already  established. 

The  absence  of  any  provision  for  alteration  in  the  early 
constitutions  should  not  be  taken  as  an  indication  that  their 
framers  thought  the  regular  legislatures  competent  to  alter 
them,  but  rather  that  they  did  not  consider  the  matter  at  all.3 

Thus  six  of  the  early  constitutions,  and  the  rejected  Massa- 
chusetts constitution  of  1778,  provided  no  method  for  their 
own  amendment.4 

Of  the  eight  constitutions  which  did  provide  for  amendment, 
three  provided  for  legislative  action  (in  a  manner  different  and 
more  difficult,  however,  than  the  passage  of  a  mere  statute),5 
two  provided  for  submission  by  a  council  of  censors  for  rati- 
fication by  a  specially  called  convention,6  one  provided  for  a 
convention  called  by  petition,7  and  one  for  a  convention  called 
by  a  popular  vote  at  a  certain  fixed  date.8 

1  Jameson,  pp.  149-150.  2  Jameson,  p.  153. 

3  Dodd,  p.  27. 

4  South  Carolina  (1776),  Virginia  (1776),  New  Jersey  (1776),  New  Hamp- 
shire (1776),  New  York  (1777),  and  North  Carolina  (Dec.  1776). 

6  Maryland  (1776),  Delaware  (1776),  and  South  Carolina  (1778). 

6  Pennsylvania  (1776)  and  Vermont  (1777).  . 

7  Georgia  (1776). 

8  Massachusetts  (1780).  The  vote  was  unfavorable,  no  convention  was 
held,  and  thus  this  method  lapsed  by  non-user.  There  was  a  similar  provision 
in  the  Kentucky  constitution  of  1792,  and  under  it  was  framed  the  constitution 
of  1799. 


THE  ORIGIN  OF  CONVENTIONS  (9 

The  New  Hampshire  constitution  of  1784  contained  a  similar 
provision,  but  with  the  added  qualification  that  the  work  of  this 
convention  should  be  submitted  to  the  voters  for  their  approval. 

But  soon  it  became  apparent  that  it  would  be  convenient 
for  each  State  to  have  two  methods  of  changing  its  constitu- 
tions; although  only  four  constitutions  had,  up  to  1835, 
adopted  both  the  legislative  and  convention  methods.1  Up  to 
1917,  one  hundred  and  thirty-nine  constitutions  have  been 
framed  by  that  many  conventions.  Of  these,  nine  have  con- 
tained no  method  of  amendment,  twenty-nine  have  contained 
provisions  for  amendment  by  convention  alone,  thirty-six  by 
the  legislative  method  alone,  and  sixty-five  by  both  modes.2 

In  all  of  the  States  except  New  Hampshire,  specific  provision 
is  now  made  for  the  amendment  of  State  constitutions,  by  action 
by  the  legislature.3 

In  twelve  States,  the  constitution  may  now  be  amended  by 
popular  initiative  without  the  interposition  of  either  the  legis- 
lature or  a  convention.4 

Only  twelve  of  the  State  constitutions  now  in  force  omit  to 
provide  for  the  holding  of  constitutional  conventions.5  Yet 
conventions  have  been  held  in  all  of  these  States  except  Rhode 
Island,  Indiana,  and  Vermont.  The  question  of  holding  a  con- 
vention has  twice  been  submitted  in  Rhode  Island,  in  spite  of  a 
Supreme  Court  opinion  declaring  the  convention  method  un- 
constitutional, and  there  have  been  authoritative  expressions 
of  opinion  in  Vermont  and  Indiana  that  a  convention  could  be 
held  there.6 

It  may  therefore  be  said  that  New  Hampshire  is  the  only  state 
in  which  amendments  may  not  be  proposed  by  the  legislature,  and 
that  Rhode  Island  is  perhaps  the  only  exception  to  the  rule  that 
conventions  may  be  held  for  the  revision  of  State  constitutions.7 

1  United  States  (1787),  South  Carolina  (1790),  and  Delaware  (1792  and 
1831). 

2  Jameson,  pp.  550-551;  Dodd,  pp.  119-120.  Arizona  and  New  Mexico  in 
1910;    Louisiana  in  1913. 

3  "Columbia  Dig.,"  pp.  10-21. 

4  "Columbia  Dig.,"  p.  771.  These  States  are  Arizona,  Arkansas,  California, 
Colorado,  Michigan,  Missouri,  Nebraska,  Nevada,  North  Dakota,  Ohio,  Okla- 
homa, and  Oregon. 

5  "  Columbia  Dig.,"  p.  21 .  These  States  are  Arkansas,  Connecticut,  Indiana, 
Louisiana,  Massachusetts,  Mississippi,  New  Jersey,  North  Dakota,  Pennsyl- 
vania, Rhode  Island,  Texas,  and  Vermont. 

6  See  Chapter  IV,  infra.  7  Do£d,  p.  120. 


10  CONSTITUTIONAL  CONVENTIONS 

The  Federal  Constitution  provides  for  the  holding  of  a  Fed- 
eral convention  as  an  alternative  to  the  usual  method  of  sub- 
mission of  amendments  by  Congress.1 

Thus  the  convention  method  and  the  legislative  method  of 
amending  constitutions  have  now  become  equally  established 
throughout  the  length  and  breadth  of  the  United  States. 

1  U.  S.  Constitution,  Art.  V. 


Chapter  II  j 
FUNDAMENTAL  PRINCIPLES 

In  order  to  understand  the  nature,  powers,  and  limitations  of 
constitutional  conventions,  it  will  be  necessary  first  to  discuss 
a  few  fundamental  principles  of  government;  for  the  convention, 
designed  as  it  is  to  tinker  with  such  a  basic  instrument  as  the 
constitution,  must  of  necessity  get  closer  to  fundamentals  than 
any  other  governmental  agency. 

Government  in  America  is  based  upon  popular  sovereignty. 
The  Federal  Constitution  was  ordained  and  established  by 
"the  people  of  the  United  States/' l  and  guarantees  to  each  of 
the  several  States  "a  republican  form  of  government."  2  This 
means,  in  other  words,  a  representative  form. 

It  is  founded  upon  the  theory  that  the  people  are  fit  to  rule, 
but  that  it  would  be  cumbersome  for  them  to  govern  themselves 
directly.  Accordingly,  for  the  facilitation  of  business,  but  for 
no  other  purpose,  the  people  choose  from  their  own  number 
representatives  to  represent  their  point  of  view  and  to  put  into 
effect  the  collective  will. 

As  Jameson  expresses  it: 

Of  the  American  system  of  government,  the  two  leading  princi- 
ples are,  first,  that  laws  and  Constitutions  can  be  rightfully  formed 
and  established  only  by  the  people  over  whom  they  are  to  be  put  in 
force;  and,  secondly,  that  the  people  being  a  corporate  unit,  com- 
prising all  the  citizens  of  the  state,  and,  therefore,  too  unwieldy  to 
do  this  important  work  directly,  agents  or  representatives  must  be 
employed  to  do  it,  and  that,  in  such  numbers,  so  selected,  and 
charged  respectively  with  such  functions,  as  to  make  it  reasonably 
certain  that  the  will  of  the  people  will  be  not  only  adequately  but 
speedily  executed.3 

1  U.  S.  Const.,  Preamble. 

2  U.  S.  Const.,  Art.  IV,  §  IV. 

8  Jameson,  p.  1;  "Works  of  Daniel  Webster,"  VI,  pp.  221-224. 


12  CONSTITUTIONAL  CONVENTIONS 

These  principles  were  recognized  by  our  forefathers  in  fram- 
ing the  various  Bills  of  Rights,  which  declare  in  substance  that, 
as  all  power  resides  originally  in  the  people,  and  is  derived  from 
them,  the  several  magistrates  and  officers  of  government  are  their 
substitutes  and  agents,  and  are  at  all  times  accountable  to  them.1 

The  various  agents  of  the  people  possess  only  such  power  as  is 
expressly  or  impliedly  delegated  to  them  by  the  constitution  or 
laws  under  which  they  hold  office;  and  do  not  possess  even  this, 
if  it  happen  to  be  beyond  the  power  of  such  constitution  or  laws 
to  grant. 

As  the  Supreme  Court  of  South  Carolina  said  in  an  early 
decision: 

Whatever  authority  this  Court  or  any  other  constituted  author- 
ity in  this  State  possesses,  it  possesses  by  delegation  from  the 
people,  and  is  exercised  in  their  right.  What  they  have  failed  to 
delegate,  even  if  it  operates  injuriously  and  in  bad  faith  towards 
their  confederates,  the  Court  cannot  possess.2 

The  Declaration  of  Independence,  which  is  the  first  great 
declaration  of  American  principles,  says  truly,  "We  hold  these 
truths  to  be  self-evident:  That  all  men  are  created  equal; 
that  they  are  endowed  by  their  Creator  with  certain  unalien- 
able rights;  that  among  these  are  life,  liberty,  and  the  pursuit 
of  happiness.  That,  to  secure  these  rights,  governments  are 
instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed." 

It  follows,  as  a  necessary  conclusion  from  this  statement  in 
the  great  Declaration,  that  the  people  have  an  unalienable  right 
to  change  their  government  whenever  the  common  good  re- 
quires. In  fact,  that  very  conclusion  is  drawn  by  the  Declara- 
tion itself. 

Yet,  because  of  the  training  of  our  ancestors,  this  idea  was 
difficult  of  establishment.    As  Braxton  points  out: 

Both  Church  and  State  taught  and  enforced  the  dogma  that 
governments  were  of  divine  origin,  and  existed  by  divine  right;  and 
to  this  proposition  the  corollary  was  obvious,  that  the  people  had 
no  right  to  alter  what  God  had  established.    Finally  the  idea  took 

1  Mass.  Decl.  of  Rts.,  Art.  V. 

2  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  270.  Cf.  Reliance  v.  Prison 
Com.  (1914),  161  Ky.  135,  142. 


FUNDAMENTAL  PRINCIPLES  13 

root  and  began  to  develop,  that  while  government,  in  its  general 
sense,  as  distinguished  from  anarchy,  may  be  said  to  be  a  divine 
institution,  yet  no  particular  form  of  government  could  lay  just 
claim  to  any  divine  right  of  preference  over  any  other  form.  In 
this  one  idea  lay  the  germ  of  all  modern  political  and  civil  liberty. 
Yet,  simple  and  elementary  as  it  seems  to  us>  in  this  age  of  enlight- 
enment, it  was  many  years  before  this  idea  could  be  reconciled  to 
the  tender  consciences  of  many  pious  persons  who  had  been  taught 
from  their  childhood,  as  a  part  of  their  religion  to  hold  in  super- 
stitious veneration  this  "Icon  Basilike"  and  all  that  it  stood  for.1 

Practically  every  one  of  the  original  State  constitutions  of 
America  contains  an  assertion  of  this  fundamental  right  of  the 
people  to  change  their  form  of  government.  The  following  quo- 
tations from  these  constitutions  may  prove  instructive  on  this 
point:  / 

Some  mode  should  be  established  by  common  consent,  and  for 
the  good  of  the  people,  the  origin  and  end  of  all  governments,  for 
regulating  the  internal  polity  of  this  colony.2 

All  political  power  is  vested  in  and  derived  from  the  people  only.3 

;  All  government  of  right  originates  from  the  people/is  founded  in 
compact  only,  and  instituted  solely  for  the  good  of  the  whole.4 

4  When  any  government  shall  be  found  inadequate  or  contrary  to 
these  purposes,  a  majority  of  the  community  hath  an  indubitable, 
inalienable,  and  indefeasible  right  to  reform,  alter,  or  abolish  it,  in 
such  manner  as  shall  be  judged  most  conducive  to  the  public  weal.8 

Whenever  these  great  ends  of  government  are  not  obtained,  the 
people  have  a  right,  by  common  consent,  to  change  it,  and  take  such 
measures  as  to  them  may  appear  necessary  to  promote  their  safety 
and  happiness.  .  .  .  The  community  hath  an  indubitable,  un- 
alienable, and  indefeasible  right  to  reform,  alter,  or  abolish 
government  in  such  manner  as  shall  be  by  that  community 
judged  most  conducive  to  the  public  weal.6 

The  people,  from  whom  all  power  originates  and  for  whose  benefit 
all  government  is  intended.7 

1  VII  "Va.  Law  Reg.,"  79,  84. 

2  S.  C.  Const.  (1776),  Preamble. 

3  N.  C.  Const.  (1776),  Decl.  of  Rts.,  Art.  I. 
*  Md.  Const.  (1776),  Art.  I. 

5  Va.  Const.  (1776),  Bill  of  Rts.,  §  3. 

6  Pa.  Const.  (1776),  Preamble  and  Decl.  of  Rts./Art.  V. 

7  Ga.  Const.  (1777),  Preamble. 


14  CONSTITUTIONAL  CONVENTIONS 

Whenever  these  great  objects  are  not  obtained,  the  people  have 
a  right  to  alter  the  government,  and  to  take  measures  necessary  for 
their  safety,  prosperity,  and  happiness.  .  .  .  The  people  alone  have 
an  incontestable,  unalienable,  and  indefeasible  right  to  institute 
government;  and  to  reform,  alter,  or  totally  change  the  same,  when 
their  protection,  safety,  prosperity,  and  happiness  require  it.1 

All  government  of  right  originates  from  the  people,  is  founded  in 
consent,  and  instituted  for  the  general  good.  Whenever  the  ends 
of  government  are  perverted,  and  public  liberty  manifestly  en- 
dangered, and  all  other  means  of  redress  are  ineffectual,  the 
people  may,  and  of  right  ought,  to  reform  the  old,  or  establish  a 
new  government.  The  doctrine  of  non-resistance  against  arbitrary 
power,  and  oppression,  is  absurd,  slavish,  and  destructive  of  the 
good  and  happiness  of  mankind.2 

All  just  authority  in  the  institutions  of  political  society  is  derived 
from  the  people,  and  established  with  their  consent,  to  advance  their 
happiness;  and  they  may,  for  this  end,  as  circumstances  require, 
from  time  to  time,  alter  their  constitution  of  government.3 

It  is  important  to  note  that  these  "self-evident  truths," 
these  "fundamental  rights"  are  admitted  rather  than  guaranr 
teed  by  the  constitutions.    See  the  following: 

Now  no  truth  can  be  self-evident,  which  becomes  evident  only 
under  particular  conditions,  as  when  it  is  deducible  only  from  .  .  . 
the  provisions  of  some  positive  code.  ...  If  the  truth  in  question 
is  a  self-evident  truth,  it  is  one  which  would  obtain  equally  whether 
asserted  in  the  constitution  ...  or  not.4 

It  needed  no  reservation  in  the  organic  law  to  preserve  to  the 
people  their  inherent  power  to  change  their  government.5 

The  Supreme  Court  of  Rhode  Island  stands  alone  in  denying 
the  principles  laid  down  in  the  Bills  of  Rights.    In  1883  it  said : 

/It  has  been  contended  that  there  is  a  great  unwritten  common  law 
of  the  states,  which  existed  before  the  Constitution,  and  which  the 
Constitution  was  powerless  to  modify  or  abolish,  under  which  the 
people  have  the  right,  whenever  invited  by  the  General  Assembly, 
...  to  alter  and  amend  their  constitutions,  .  .  .  Our  Constitu- 

1  Mass.  Const.,  Preamble  and  Bill  of  Rts.,  Art.  VII. 

2  N.  H.  Const.  (1784),  Preamble  and  Bill  of  Rts.,  Art.  X. 
8  Del.  Const.  (1792),  Preamble. 

4  Jameson,  pp.  235-236. 

6  EUingham  v.  Dye  (1912),  178  Ind.  336,  344. 


FUNDAMENTAL  PRINCIPLES  15 

tion  is  .  .  .  the  Supreme  law  of  the  State!  We  know  of  no  law, 
except  the  Constitution  and  laws  of  the  United  States,  which  is 
paramount  to  it.1 

And  this  in  the  teeth  of  the  fact  that  the  Bill  of  Rights  then 
in  force  in  Rhode  Island  proclaimed: 

The  basis  of  our  political  systems  is  the  right  of  the  people  to 
make  and  alter  their  constitutions  of  government.2 

And  of  the  fact  that  the  Rhode  Island  convention  which  rati- 
fied the  Federal  Constitution  included  in  the  ratification  these 
words: 

That  the  powers  of  government  may  be  re-assumed  by  the  people, 
whensoever  it  shall  become  necessary  to  their  happiness. 

Holcombe  has  an  ingenious  theory  that  the  Federal  Consti- 
tution destroyed  this  right  referred  to  in  the  various  State  con- 
stitutions, but  he  is  apparently  alone  in  this.3 

How  may  the  people  exercise  this  right  to  change  their 
government?  They  may  do  it  in  any  one  of  three  ways :  namely, 
(1)  by  some  authorized  procedure;  (2)  by  a  lawful  act  of  the 
whole  people  in  their  sovereign  capacity;  or  (3)  by  the  spon- 
taneous act  of  an  unrepresentative  part  of  the  people. 

By  the  term  "authorized  procedure,"  I  mean  some  method 
provided  by  the  charter  or  constitution  under  which  the  State 
in  question  is  governed,  or  by  the  express  permission  of  some 
sovereign  government,  in  case  the  people  in  question  are  a 
subject  people.  An  example  of  the  latter  sort  is  when  Congress 
passes  an  act  permitting  some  subject  territory  of  the  United 
States  to  frame  a  form  of  government  preparatory  to  its  ad- 
mission to  statehood. 

The  whole  people  in  their  sovereign  capacity,  acting  through 
the  forms  of  law  at  a  regular  election,  may  do  what  they  will 
with  their  own  frame  of  government,  even  though  that  frame 
of  government  does  not  expressly  permit  such  action,  and  even 
though  the  frame  of  government  attempts  to  prohibit  such 
action.  This  method  of  change  of  government  will  be  amplified 
and  justified  in  Chapter  IV. 

1  Opinion  of  Justices  (1883),  14  R.  I.  649,  654. 

2  R.  I.  Const.,  Art.  I,  §  1. 

3  Holcombe,  "  State  Government,"  p  33.    See  p.  168,  infra. 


16  CONSTITUTIONAL  CONVENTIONS 

When  a  part  of  the  people  or  even  a  majority  of  them  act 
outside  the  forms  of  law,  they  have  no  power  except  the  power 
of  force  to  bind  those  who  do  not  join  in  the  movement.  Such 
a  change  or  attempted  change  of  government  is  nothing  but 
factional,  even  though  it  may  be  conducted  in  a  most  orderly 
manner.  Factional  changes  of  government,  or  "spontaneous 
changes,"  as  Jameson  calls  them,  will  be  discussed  more  fully 
toward  the  end  of  this  chapter.1 

The  Pennsylvania  Supreme  Court  has  attempted  to  draw  a 
distinction  between  these  three  methods  of  change  of  govern- 
ment.   The  court's  language  is  as  follows: 

The  words  "in  such  manner  as  they  may  think  proper,"  in  the 
declaration  of  rights,  embrace  but  three  known  recognized  modes 
by  which  the  whole  people,  the  state,  can  give  their  consent  to  an 
alteration  of  an  existing  lawful  frame  of  government,  viz. : 

1.  The  mode  provided  in  the  existing  constitution. 

2.  A  law,  as  the  instrumental  process  of  raising  the  body  for 
revision  and  conveying  to  it  the  powers  of  the  people. 

3.  Revolution. 

The  first  two  are  peaceful  means  through  which  the  consent  of 
the  people  to  alteration  is  obtained,  and  by  which  the  existing 
government  consents  to  be  displaced  without  revolution.  The  gov- 
ernment gives  its  consent,  either  by  pursuing  the  mode  provided  in 
the  constitution,  or  by  passing  a  law  to  call  a  convention.  If  con- 
sent be  not  so  given  by  the  existing  government  the  remedy  of  the 
people  is  in  the  third  mode,  —  revolution. 

If  the  legislature,  possessing  these  powers  of  government,  be 
unwilling  to  pass  a  law  to  take  the  sense  of  the  people,  or  to  dele- 
gate to  a  convention  all  the  powers  the  people  desire  to  confer 
upon  their  delegates,  the  remedy  is  still  in  their  own  hands;  they 
can  elect  new  representatives  that  will.  If  their  representatives 
are  still  unfaithful,  or  the  government  becomes  tyrannical,  the 
right  of  revolution  yet  remains.2 

The  author  would  suggest  that  the  following  changes  be 
made  in  the  parts  which  he  has  italicized:  namely,  that  the 
first  "revolution"  be  changed  to  "spontaneous  action,  ratified 
by  acquiescence,"  and  that  the  second  and  third  "revolution" 
be  changed  to  "  spontaneous  action." 

1  See  pp.  19-23,  infra.    Cf.  Jameson,  p.  104. 
*  Wells  v.  Bain  (1872),  75  Pa.  39,  at  47-48. 


FUNDAMENTAL  PRINCIPLES  17 

Let  us  not  however  attempt  to  decide  at  just  this  point 
whether  the  Pennsylvania  Court  correctly  used  the  term 
"revolution."  This  is  really  a  question  of  terminology  rather 
than  of  fundamentals.  The  definition  of  the  word  will  be  dis- 
cussed in  Chapter  III,1  and  in  Chapter  IV  there  will  be  con- 
sidered the  question  as  to  whether  popular  conventions  may 
properly  be  designated  as  "revolutionary."2 

On  the  fundamental  points  expressed,  the  Pennsylvania 
Court  was  entirely  correct.  It  laid  down  the  principles  that  the 
electorate  is  really  a  representative  body,  a  body  representing 
"the  people." 

The  people  here  meant  are  the  whole  —  those  who  constitute 
the  entire  state,  male  and  female  citizens,  infants  and  adults.  A 
mere  majority  of  those  persons  who  are  qualified  as  electors  are  not 
the  people,  though  when]  authorized  to  do  so,  they  may  represent 
the  whole  people. 

The  electors  who  can  pronounce  the  voice  of  the  people  are  those 
alone  who  possess  the  qualifications  sanctioned  by  the  people  in 
order  to  represent  them,  otherwise  they  speak  for  themselves  only, 
and  do  not  represent  the  people. 

A  majority  of  the  adult  males  having  the  qualifications  of  elec- 
tors can  bind  the  whole  people  only  when  they  have  authority  to 
do  so. 

The  great  error  of  the  argument  of  those  who  claim  to  be  the 
people,  or  the  delegates  of  the  people,  is  in  the  use  of  the  word 
people.  Who  are  the  people?  Not  so  many  as  choose  to  assemble 
in  a  county,  or  a  city,  or  a  district,  of  their  own  mere  will,  and  to 
say  —  we  the  people.  Who  gave  them  power  to  represent  all  others 
who  stay  away?  Not  even  the  press,  that  wide-spread  and  most 
powerful  of  all  subordinate  agencies,  can  speak  for  them  by  au- 
thority. The  voice  of  the  people  can  be  heard  only  through  an 
authorized  form,  for,  as  we  have  seen,  without  this  authority  a  part 
cannot  speak  for  the  whole,  and  this  brings  us  back  to  a  law  as  the 
only  authority  by  which  the  will  of  the  whole  people,  the  body 
politic  called  the  state,  can  be  collected  under  an  existing  lawful 
government.3 

1  See  pp.  31-33,  infra.  2  See  p.  54,  infra. 

3  Wells  v.  Bain  (1872),  75  Pa.  39,  at  46,  47,  49,  and  53. 


18  CONSTITUTIONAL  CONVENTIONS 

And  Braxton  says,  in  the  same  connection: 

The  "people"  to  whom  our  Bills  of  Rights  refer,  the  only 
"people"  whom  civilization  recognizes  as  having  any  sovereign 
or  political  rights,  are  the  people,  not  in  a  state  of  nature,  but  as 
organized  into  social  government.  When,  therefore,  we  are  dis- 
cussing any  problem  or  doctrine  of  government,  or  of  political  or 
civil  rights,  let  us  lay  aside  all  consideration  of  the  people  in  a 
"state  of  nature";  let  us  omit  all  reference  to  that  idle  dream  of 
the  early  theorists,  about  the  people  meeting  together  in  a  "vast 
plain"  —  a  thing  they,  of  course,  never  did  and  never  possibly  could 
have  done;  and  instead,  let  us  ever  consider  the  people,  not  as  a 
capricious,  erratic,  lawless  monster,  but  as  an  all-powerful,  but 
orderly,  force  moving  only  in  lawful  form,  in  accordance  with  the 
great  rules  and  principles,  and  in  pursuance  of  the  methods,  which 
are  essential  to  its  organized  existence.1 

The  people  do  not  vote  at  a  popular  election  any  more  than 
they  vote  at  a  session  of  the  legislature.  They  speak  only 
through  representatives  in  either  instance.  The  people  include 
men,  women,  and  children.  In  some  governmental  functions, 
these  people  speak  through  the  electors,  in  other  instances 
through  the  legislature,  but  always  through  representatives. 

Some  writers  have  even  gone  to  the  extent  of  stating  that 
the  electors  are  the  people.    Witness  the  following: 

Under  our  system  of  government  it  is  apparently  well  settled 
that  the  ultimate  sovereignty  is  in  the  people,  in  the  restricted 
sense  of  those  who  are  enfranchised.  The  power  to  change  the  fun- 
damental —  the  written  constitution  —  is  in  them  alone.  It  is 
this  principle  which  causes  the  courts  to  recognize  generally  the 
right  of  the  legislature,  as  the  organ  of  the  people,  to  submit  a  call 
for  a  convention  of  the  people,  and  to  regard  such  a  convention  as  a 
valid  method  of  constitution  making,  although  the  existing  con- 
stitution contains  no  provision  to  that  effect.2 

The  Massachusetts  Supreme  Court  has  recently  held  that 
"people"  as  mentioned  in  the  Bill  of  Rights  are  all  the  people, 
whereas  "people"  in  provisions  relative  to  elections  are  merely 
the  qualified  voters.3  This  would  seem  to  be  a  very  sensible 
distinction. 

But  be  that  as  it  may.    A  majority  of  the  electors  can  repre- 

1  VII  "Va.  Law  Reg.,"  79,  87. 

8  XXIX  "Harv.  Law  Rev.,"  529. 

3  1917  Mass.  Senate  Doc.,  512.    See  pp.  208-209,  mfra. 


FUNDAMENTAL  PRINCIPLES  19 

sent  the  people  only  at  a  duly  held  election.  The  action  of  a  ma- 
jority of  the  electors  in  any  other  manner  is  just  as  ineffective  as 
would  be  the  action  of  a  majority  of  the  legislators  taken  during 
a  legislative  recess. 

The  Pennsylvania  Court  expresses  these  thoughts  in  the 
following  language: 

The  people,  that  entire  body  called  the  state,  can  be  bound  as  a 
whole  only  by  an  act  of  authority  proceeding  from  themselves.  In 
a  state  of  peaceful  government  they  have  conferred  this  authority 
upon  a  part  to  speak  for  the  whole  only  at  an  election  authorized 
by  law.  It  is  only  when  an  election  is  authorized  by  law,  that  the 
electors,  who  represent  the  state  or  whole  people,  are  bound  to 
attend,  and  if  they  do  not,  can  be  bound  by  the  expression  of  the 
will  of  those  who  do  attend.1 

Law  is  the  highest  form  of  a  people's  will  in  a  state  of  peaceful 
government,  when  a  people  act  through  a  law  the  act  is  theirs.2 

Judged  by  these  standards,  it  will  be  seen  that  a  spontaneous 
convention  is  not  really  a  movement  of  the  whole  people,  no 
matter  how  large  a  percentage  of  the  voters  it  actually  repre- 
sents. 

This  may  answer  the  suggestion  which  is  often  made  by  loose 
thinkers  on  this  subject;  namely,  if  some  rich  man  or  some 
body  of  men  were  to  pay  the  expenses  of  holding  a  state-wide 
election,  and  were  to  invite  all  the  voters  to  attend,  would  not 
an  amendment  adopted  at  such  an  election  become  a  valid 
part  of  the  constitution  through  thus  receiving  the  popular 
sanction?    But  the  Pennsylvania  Court  replies  as  follows: 

Let  us  suppose  a  voluntary  election  unauthorized  by  law,  and 
delegates  elected.  It  is  plain  a  convention  composed  of  such  dele- 
gates would  possess  no  power  to  displace  the  existing  government, 
and  impose  a  new  constitution  on  the  whole  people.  Those  voting 
at  the  unauthorized  election  had  no  power  to  represent  or  to  bind 
those  who  did  not  choose  to  vote. 

Suppose  a  constitution  formed  by  a  volunteer  convention,  as- 
suming to  represent  the  people,  and  an  attempt  to  set  it  up  and  dis- 
place the  existing  lawful  government.    It  is  clear  that  neither  the 

J  Wells  v.  Bain  (1872),  75  Pa.  39,  47.  See  also  in  this  connection  the  quo- 
tation on  page  22,  infra. 

2  Wood's  Appeal  (1874),  75  Pa.  59,  71-72. 


20  CONSTITUTIONAL  CONVENTIONS 

people  as  a  whole  nor  the  government  having  given  their  assent  in 
any  binding  form,  the  executive,  judiciary  and  all  officers  sworn  to 
support  the  existing  constitution  would  be  bound,  in  maintenance 
of  the  lawfully-existing  institutions  of  the  people,  to  resist  the 
usurpation,  even  to  the  whole  extent  of  the  force  of  the  state.  If 
overpowered,  the  new  government  would  be  established,  not  by 
peaceful  means,  but  by  actual  revolution.1 

The  leading  example  of  factional  convention  in  the  United 
States  is  the  "People's  Convention"  in  1841  in  Rhode  Island, 
which  culminated  in  what  is  generally  known  as  "Dorr's  Re- 
bellion," to  be  discussed  a  little  later. 

In  Maryland,  in  1837,  there  were  conditions  like  those  in 
Rhode  Island  in  1841,  and  the  supporters  of  reform  elected  a 
convention  without  any  authorization  from  the  regular  govern- 
ment, but  the  convention  took  no  action,  for  the  legislature 
hastened  to  adopt  the  most  important  proposed  reforms.2 

Somewhat  similar  to  the  Maryland  case  was  that  of  the  con- 
vention at  Topeka  in  the  territory^  of  Kansas  in  1855.  This 
convention  was  assembled  upon  the  recommendation  of  meet- 
ings and  associations  of  private  individuals.  The  constitution 
which  it  framed  was  submitted  to  a  popular  vote  and  received 
a  majority  of  the  votes  cast  upon  the  question  of  its  adoption, 
although  only  its  friends  voted  upon  this  question.  This  con- 
stitution was  never  recognized  by  Congress,  though  it  would 
seem  that  the  irregularity  of  its  formation  and  adoption  might 
have  been  cured  by  congressional  ratification,  had  Congress 
cared  to  take  such  action.3 

The  territory  of  Michigan  in  1835  adopted  a  constitution 
and  applied  for  admission  into  the  Union.  Congress  passed  an 
act  that  Michigan  should  be  admitted  if  she  would  agree  to  a 
restricted  boundary.  The  new  State  rejected  the  condition. 
Thereupon  a  popular  movement  was  begun,  and  delegates  were 
elected  to  a  convention,  which  assembled  without  either  con- 
gressional or  State  authorization,  and  assented  to  the  condition 
imposed  by  Congress.  Congress  accepted  this  action  as  satis- 
factory and  by  its  acceptance  ratified  the  action  of  the  irregular 
convention.4 

1  Wells  v.  Bain  (1872),  75  Pa.  39,  48-49. 

2  Jameson,  p.  216;  Dodd,  p.  61. 

3  Jameson,  pp.  202-204;  Dodd,  p.  61. 

4  Jameson,  pp.  188-189;  Dodd,  pp.  61-62. 


FUNDAMENTAL  PRINCIPLES  21 

Thus  what  is  originally  merely  a  factional  convention  may  in 
some  cases  become  an  authorized  convention  by  subsequent  rati- 
fication; in  such  cases,  by  Congress. 

"  But  apart  from  some  curing  ratification,  we  have  seen  that, 
although  the  people  are  supreme,  they  have  no  method  of  ex- 
pression except  through  their  representatives,  the  voters;  and 
they  in  turn  can  only  speak  by  means  of  elections  regularly 
called  and  held. ' 

It  was  this  little  technical  point  alone  which  justified  the  prose- 
cution of  Thomas  W.  Dorr  for  supporting  the  "  People's  Con- 
stitution" of  1841  in  Rhode  Island.  Under  his  leadership  the 
people  of  that  State  attempted  to  overthrow  the  tyrannous  rule 
of  the  landholding  classes  who  were  still  entrenched  behind  the 
King's  charter.  Caucuses  of  the  adult  male  citizens  through- 
out the  State  sent  delegates  to  a  convention  which  submitted  a 
fair  and  democratic  constitution  to  a  special  election  called  by 
it.  At  this  election  a  clear  majority  of  all  the  adult  males  voted 
for  the  new  frame  of  government.  Not  only  this,  but  among 
those  voting  in  favor  was  *h  clear  majority  of  those  duly  regis- 
tered' as  voters  under  the  charter.  Dorr  was  subsequently 
elected  Governor.  He  attempted  to  assume  office,  but  John 
Tyler,  Whig  President  of  the  United  States,  interfered  at  the 
request  of  the  Whig  charter  government,  and  forced  Dorr  and 
many  of  his  followers  into  exile,  by  threatening  to  send  Fed- 
eral troops  into  the  State.  This  partisan  action,  by  the  way, 
is  chiefly  what  drove  the  Whigs  from  power  in  the  succeeding 
national  election.  Equally  partisan  was  the  Democratic  con- 
gressional report  on  Tyler's  action,  which  report  will  be  cited 
elsewhere  in  this  volume. 

On  Dorr's  return,  a  few  years  later,  he  was  tried  and  convicted 
of  high  treason.  In  the  meantime,  the  Charterists  themselves 
had  submitted  a  constitution,  which  had  received  the  votes  of 
less  than  one  third  of  the  adult  males,  less  than  half  of  the  regis- 
tered vote. 

Yet  technically  this  became  the  constitution  of  the  State, 
and  the  People's  Constitution  did  not.  Neither  method  of  pro- 
cedure was  authorized  by  the  charter.  The  valid  one  received 
seven  thousand  votes;  the  invalid  one  nearly  fourteen  thou- 
sand. Yet  the  difference  in  validity  lay  in  this:  the  seven  thou- 
sand voted  at  a  duly  called  election,  and  hence  had  authority 


22  CONSTITUTIONAL  CONVENTIONS 

to  speak  for  the  whole  people;  whereas  the  fourteen  thousand 
voted  at  an  irregular  election,  and  hence  spoke  only  for  them- 
selves.1 

The  following  quotations  from  the  unreported  opinion  of 
the  Rhode  Island  Supreme  Court  rendered  at  Dorr's  trial  may- 
prove  instructive. 

This  court  can  recognize  no  other  [i.  e.  constitution]  than  that 
under  which  it  holds  its  existence.  .  .  .  Any  irregular  action,  with- 
out legal  authority,  is  no  action  at  all,  that  can  be  taken  notice  of 
by  a  court  of  law.  ...  It  matters  not  therefore  whether  a  major- 
ity, or  what  majority,  voted  for  a  pretended  constitution,  as  is 
alleged  by  the  prisoner,  and  as  he  now  asks  to  be  permitted  to 
prove.  The  numbers  are  nothing;  we  must  look  to  the  legality  of 
the  proceeding,  which,  being  without  form  of  legal  authority,  is 
void  and  of  no  effect.2 

See  also  the  following  quotations  from  the  argument  of  Daniel 
Webster  in  the  famous  case  of  Luther  v.  Borden  in  which  the 
United  States  Supreme  Court  went  very  fully  into  the  validity 
of  Dorr's  Rebellion,  although  deciding  the  case  on  other  grounds: 

When  it  is  necessary  to  ascertain  the  will  of  the  people,  the  legis- 
lature must  provide  the  means  of  ascertaining  it. 

There  must  be  an  authentic  mode  of  ascertaining  the  public  will 
somehow  and  somewhere.  If  not,  it  is  a  government  of  the  strong- 
est and  most  numerous.3 

One  of  the  five  instances  in  which  new  States  have  been  formed 
within  the  boundaries  of  other  States,  presents  an  example  of  a 
factional  convention.  Vermont  is  not  such  an  instance,  as  she 
had  maintained  her  independence  against  the  State  of  New 
York  and  the  United  States  for  fourteen  years;4  and  hence, 
however  irregular  had  been  her  original  organization,  her  gov- 
ernment had  become  regular  through  lapse  of  time  and  ac- 
quiescence of  her  people.5 

But  in  the  case  of  West  Virginia,  the  legality  of  its  admission 

1  For  full  accounts  of  "Dorr's  Rebellion"  see  Committee  Rept.,  546, 
1st  Sess.,  28th  Cong.;  Mowry,  "The  Dorr  War"  (1901);  Luther  v.  Borden 
(1849),  7  How.  1. 

2  "Trial  of  Dorr,"  p.  38.  *  7  How.  1,  31-32. 

4  Jameson,  p.  139.  6  See  Chapter  XVII,  infra. 


FUNDAMENTAL  PRINCIPLES  23 

into  the  Union  depends  to  a  large  extent  on  the  legality  of  the 
absolutely  revolutionary  pro-union  government,  which  was 
set  up  in  the  State  of  Virginia  shortly  after  the  outbreak  of  the 
Civil  War.  This  government  appears  to  have  been  ordained  by 
a  convention  extremely  factional,  representing  but  a  fraction 
of  the  people  of  a  fraction  of  the  State;  and  yet  the  assent  of 
this  government  to  the  dismemberment  of  Virginia  was  ren- 
dered effective  by  force  of  Federal  arms,  just  as  the  factional 
government  in  Rhode  Island  was  rendered  ineffective  by  the 
same  force.1 

The  possibility  of  spontaneous  changes  being  legal  has  been 
suggested  in  the  following  dictum: 

It  may  well  be  questioned  whether,  had  the  Legislature  refused 
to  make  provision  for  calling  a  convention,  the  people  in  their 
sovereign  capacity  would  not  have  had  the  right  to  have  taken  such 
measures  for  framing  and  adopting  a  constitution  as  to  them  seemed 
meet.2 

The  Committee  of  Congress,  chosen  for  partisan  purposes  to 
prepare  a  report  on  Dorr's  Rebellion,  discreditable  to  President 
Tyler,  framed  an  ingenious  theory  along  the  lines  of  the  above 
dictum,  to  the  effect  that  a  majority  of  the  adult  males  consti- 
tute the  people.  This  theory  they  expressed  in  the  following 
language: 

That  the  (political)  people  include  all  free  white  male  persons, 
of  the  age  of  twenty-one  years,  who  are  citizens  of  the  State,  are 
of  sound  mind,  and  have  not  forfeited  their  right  by  some  crime 
against  the  society  of  which  they  are  members.3 

It  is  true  that  the  original  Virginia  Bill  of  Rights  says  that 
"a  majority  of  the  community  hath  an  indubitable,  unalien- 
able and  indefeasible  right,  etc."4  And  Walker  says  that  the 
right  of  revolution  exists  "whenever  a  majority  desire  it."  5 

But  in  the  light  of  the  foregoing  discussion,  it  is  probable  that 
what  Walker  and  the  framers  of  the  Virginia  constitution  really 

1  Jameson  makes  a  half-hearted  claim  that  all  this  was  perfectly  constitu- 
tional.   Jameson,  pp.  168-172. 

2  Goodrich  v.  Moore  (1858),  2  Minn.  61,  66. 

3  Committee  Rept.,  546,  1st  Sess.,  28th  Cong.,  p.  50. 

4  Va.  BUI  of  Rights,  §  3. 

6  Walker,  "American  Law"  (11  ed.),  p.  231. 


24  CONSTITUTIONAL  CONVENTIONS 

meant  was  the  right  of  the  people,  speaking  through  a  majority 
of  their  electors. 

At  any  rate,  particularly  in  these  days  when  women  are  clam- 
oring that  they  too  are  people,  it  is  easier  to  follow  the  Penn- 
sylvania view  that  all  male,  female,  and  minor  citizens  are 
people,  but  that  the  people  can  speak  only  through  duly 
qualified  voters.1 

Of  course,  it  is  true  that  many  factional  movements  have 
succeeded  in  overturning  the  government.  But  they  have  been 
ratified  by  subsequent  events,  which  made  up  for  the  illegality 
of  their  beginnings.  The  spontaneous  governments  of  the 
American  colonies  succeeded  when  force  triumphed  over  Eng- 
land. The  "People's"  government  of  Rhode  Island  failed, 
and  the  Union  government  of  West  Virginia  succeeded,  because 
of  force,  applied  by  the  Federal  authorities. 

Revolutionary  conventions  .  .  .  are  not  peculiar  to  any  coun- 
try, but  have  existed  wherever,  and  will  continue  occasionally  to 
exist  as  long  as,  the  ultimate  and  eternal  right  of  revolution  re- 
mains —  a  right  which,  it  is  said,  depends  solely  upon  the  power  to 
successfully  invoke  it.2 

If  overpowered,  the  new  government  would  be  established,  not 
by  peaceful  means,  but  by  actual  revolution.3 

Thus  authorized  movements  depend  upon  either  constitu- 
tional or  congressional  authority;  popular  movements  depend 
upon  the  power  of  the  people;  spontaneous  movements  depend 
upon  force,  or  at  least  upon  acquiescence. 

No  exact  line  can  be  drawn  between  the  three  different 
classes  of  change  of  government;  each  merges  into  the  next, 
and  many  instances  are  on  the  line. 

Daniel  Webster  has  summed  up,  in  the  following  words, 
the  ground  which  we  have  just  covered,  and  this  summary  has 
twice  received  the  approval  of  the  United  States  Supreme  Court: 

Mr.  Webster's  argument  in  that  case  took  a  wider  sweep,  and 
contained  a  masterly  statement  of  the  American  system  of  govern- 
ment, as  recognizing  that  the  people  are  the  source  of  all  political 
power,  but  that  as  the  exercise  of  governmental  powers  immediately 
by  the  people  themselves  is  impracticable,  they  must  be  exercised 

1  See  quotation  from  Wells  v.  Bain,  p.  17,  supra. 

2  Braxton,  VII  "  Va.  Law  Reg.,"  79,  82. 

3  Wells  v.  Bain  (1872),  75  Pa.  39,  49. 


FUNDAMENTAL  PRINCIPLES  25 

by  representatives  of  the  people;  that  the  basis  of  representation 
is  suffrage;  that  the  right  of  suffrage  must  be  protected  and  its 
exercise  prescribed  by  previous  law,  and  the  results  ascertained  by 
some  certain  rule;  that  through  its  regulated  exercise  each  man's 
power  tells  in  the  constitution  of  the  government  and  in  the  enact- 
ment of  laws;  that  the  people  limit  themselves  in  regard  to  the 
qualifications  of  electors  and  the  qualifications  of  the  elected,  and 
to  certain  forms  for  the  conduct  of  elections;  that  our  liberty  is  the 
liberty  secured  by  the  regular  action  of  popular  power,  taking  place 
and  ascertained  in  accordance  with  legal  and  authentic  modes;  and 
that  the  Constitution  and  laws  do  not  proceed  on  the  ground  of 
revolution  or  any  right  of  revolution,  but  on  the  idea  of  results 
achieved  by  orderly  action  under  the  authority  of  existing  govern- 
ments, proceedings  outside  of  which  are  not  contemplated  by  our 
institutions.1 

One  more  fundamental  point,  not  directly  related  to  the  fore- 
going, must  however  be  discussed:  namely,  the  meaning  of 
constitutionality  and  unconstitutionality,  and  the  relation 
between  the  constitution  and  governmental  affairs  in  general.2 

This  is  a  subject  under  which  there  exists  a  good  deal  of  mis- 
apprehension, with  the  result  that  lawyers,  writers,  and  even 
judges  have  been  found  laying  down  the  principle  that  anything 
which  is  not  authorized  by  the  constitution  must,  therefore, 
be  considered  as  prohibited  by  the  constitution.  And  yet  the 
great  distinction  drawn  by  Chief  Justice  Lemuel  Shaw  between 
Federal  and  State  constitutions  rests  upon  a  denial  of  this 
assumption.3 

The  purport  of  his  decision  was  that  there  exists  midway 
between  the  class  of  actions  prohibited  by  the  constitution  and 
the  class  of  action  authorized  by  the  constitution,  a  twilight 
zone  consisting  of  those  actions  which  are  neither  authorized 
nor  prohibited. 

As  the  Federal  government  has  no  powers  other  than  those 
expressly  or  impliedly  given  to  it  by  the  Constitution,  all 
Federal  activities  within  the  twilight  zone  are  just  as  illegal  as 
those  which  fall  into  the  expressly  prohibited  class.  As  the 
people  reserve  to  themselves  all  powers  not  expressly  or  im- 

1  Re  Duncan  (1891),  139  U.  S.  449,  461;  Taylor  v.  Beckham  (1899),  178 
U.  S.  548,  579.  g  < 

2  For  a  definition  of  "  constitutional,"  see  p.  30,  infra. 

3  Commonwealth  v.  Kimball  (1837),  24  Pick.  359. 


26  CONSTITUTIONAL  CONVENTIONS 

pliedly  granted  to  the  three  branches  of  the  government,  it 
follows  that  with  respect  to  the  State  constitutions,  any  action 
falling  within  the  twilight  zone  is  lawful  through  not  being 
prohibited. 

Thus  it  is  seen  that  there  are  three  classes  of  cases  in  con- 
stitutional law,  namely:  (1)  things  authorized;  (2)  things 
neither  authorized  nor  prohibited;  and  (3)  things  prohibited. 

To  this  may  perhaps  be  added  a  fourth  class,  namely,  things 
which  the  constitution  has  no  power  either  to  authorize  or  to 
prohibit. 

Thus  with  respect  to  the  control  of  State  constitutions  over 
the  question  of  amending  the  constitution,  any  given  method 
may  be  either  (1)  expressly  authorized;  (2)  permitted  because 
not  prohibited;  (3)  prohibited;  or  (4)  beyond  the  jurisdiction 
of  the  constitution. 

This  fourth  class  is  perhaps  a  subdivision  of  the  second. 
Any  amendatory  method  which  is  beyond  the  control  of  the 
constitution  falls  into  class  4,  regardless  of  whether  the  con- 
stitution attempts  to  authorize  or  prohibit  it,  or  merely  remains 
silent  on  the  subject. 

A  word  more  relative  to  this  fourth  class.  Some  persons 
will  deny  that  there  can  exist  a  class  of  actions,  which  are 
neither  constitutional  nor  unconstitutional,  being  beyond  the 
control  of  the  constitution.  To  such  a  person,  the  following 
question  should  be  put:  "Under  the  State  constitution,  is  it 
constitutional  or  unconstitutional  for  the  President  of  the 
United  States  to  call  out  the  State  militia?"  The  answer  is: 
"The  State  constitution  has  nothing  to  do  with  the  matter." 
This  is  merely  one  example  to  show  the  possibility  of  the  exist- 
ence of  extrar  or  even  swpra-constitutional  matters. 

Now  to  another  point:  the  suggestion  was  made  in  Chapter  I 
that  when  the  colonies  declared  their  independence,  they  re- 
verted to  a  state  of  nature.1  This  suggestion  deserves  a  little 
analytical  attention. 

Dodd  quotes  with  approval  the  following  from  a  resolution 
passed  at  a  meeting  of  New  Hampshire  towns  in  1776: 

It  is  our  humble  opinion,  that,  when  the  Declaration  of  Inde- 
pendency took  place,  the  Colonies  were  absolutely  in  a  state  of 

1  P.  1,  supra. 


FUNDAMENTAL  PRINCIPLES  27 

nature,  and  the  powers  of  Government  reverted  to  the  people  at 
large.1 

And  the  Supreme  Court  of  Virginia  has  said: 

The  instant  that  the  declaration  of  independence  took  effect, 
had  the  convention  proceeded  no  farther,  the  government,  as  for- 
merly exercised  by  the  crown  of  Great  Britain,  being  thereby 
totally  dissolved,  there  would  never  have  been  an  ordinary  legisla- 
ture, nor  any  other  organized  body,  or  authority  in  Virginia.  Every 
man  would  have  been  utterly  absolved  from  every  social  tie,  and 
remitted  to  a  perfect  state  of  nature.2 

But  Braxton  says: 

What,  then,  is  this  "right  of  the  people"  (or  of  a  majority  of 
them)  to  "alter  their  government,"  which  the  advocates  of  con- 
ventional omnipotence  invoke  to  support  their  views?  Is  it  the 
right  to  resolve  themselves  into  a  "state  of  nature,"  to  "scatter 
the  elements  of  government  around  them,"  and  to  "  stand  upon  the 
foundations  of  society"  —  "to  conjure  up  chaos?"     Surely  not. 

To  the  religious  man,  government,  in  its  broadest  sense,  is  still 
regarded  as  ordained  by  God,  and  therefore  the  people  have  no  right 
to  abolish  it;  to  the  non-religious,  it  is  still  an  absolute  essential 
for  the  existence  of  society.  What  right,  then,  have  the  people  to 
abolish  government?  The  "people,"  as  we  have  seen  —  the  only 
"people"  whom  political  society  can  recognize  are  the  people  or- 
ganized into  a  government  of  some  sort.  If,  then,  they  should 
abolish  all  government,  they  would  manifestly  destroy  their  own 
existence. 

When  we  speak  of  the  right  of  the  people  to  govern  themselves 
we  do  not  mean  what  the  words  literally  imply,  but  merely  their 
right  to  alter  or  amend  their  government,  or  to  replace  it  with  a  new 
one,  at  their  pleasure. 

The  existence  of  government  is  absolutely  essential  to  the  exist- 
ence of  the  "people"  in  any  political  sense;  and  the  only  way  in 
which  the  people  have  a  right  to  abolish  the  government  is  by 
substituting  a  new  one  in  its  stead.  There  can  be  no  hiatus  be- 
tween them. 

The  idea  of  the  people  resuming  —  taking  back  into  their  own 
hands  —  all  the  powers  of  government  is  a  delusion.  The  people 
can  never  take  the  powers  of  government  into  their  own  hands; 

1  N.  H.  State  Papers,  Vol.  VIII,  p.  425;  Dodd,  p.  2. 

2  Kamper  v.  Hawkins  (1793),  3  Va.  20,  72. 


28  CONSTITUTIONAL  CONVENTIONS 

the  utmost  they  can  do  is  to  enlarge  or  curtail,  amend  or  alter,  those 
powers  in  the  hands  of  their  government,  or  to  transfer  them  from 
one  government  to  another;  but  they  can  never  "resume"  them 
in  toto.  Not  only  have  they  no  right,  but  they  have  no  power  to 
do  so.  They  can  abolish  government,  and  thereby  destroy  their 
own  political  existence,  but  they  can  never  directly  exercise  the 
powers  of  government  —  only  a  government  of  some  sort  can  pos- 
sibly do  this.1 

-In  other  words,  the  people  are  all-powerful  like  Samson; 
but  when  they  pull  down  the  temple  of  the  state,  they  thereby 
destroy  themselves. 

Of  course,  Braxton  is  right;  but  is  he  not  setting  up  a  man 
of  straw  so  as  to  knock  it  down  again?  He  is  attacking  the 
oratorical  flights  of  fancy  of  those  who  assert  convention 
sovereignty,2  rather  than  attacking  the  real  foundations  of  their 
arguments. 

Most  other  writers  assume  that  which  Braxton  sets  out  so 
elaborately  to  prove.  Thus  Jameson  says  that  the  people  are 
a  corporate  unit,  comprising  all  the  citizens  of  the  state.3 
The  Pennsylvania  Supreme  Court  has  defined  the  people  as 
"the  body  politic  called  the  state."4 

And  the  Supreme  Court  of  Virginia  reaches  the  same  con- 
clusion, although  basing  the  result  upon  the  inconvenience 
rather  than  the  impossibility  of  a  state  of  nature.5 

From  all  the  foregoing  discussion,  we  can  deduce  the  follow- 
ing fundamental  principles  to  guide  us  in  considering  the  status, 
powers,  and  limitations  of  constitutional  conventions. 

Ours  is  a  representative  government,  founded  on  popular 
sovereignty. 

"The  people"  are  the  people  as  organized  into  a  state  of 
social  government;  they  cannot  abolish  government  without 
thereby  terminating  their  own  existence  as  the  people. 

Governments  derive  their  powers  from  the  consent  of  the 
governed;  therefore  the  governed  have  a  right  to  withdraw 
that  consent  and  to  change  their  government  at  will.  They  can 
exercise  this  right  either  by  an  authorized  procedure,  by  a 

1  VII  "Va.  Law  Reg.,"  79,  88-89. 

2  Convention  sovereignty  will  be  considered  on  its  merits  in  Chapter  XI. 
8  Jameson,  p.  1. 

4  Wells  v.  Bain  (1872),  75  Pa.  39,  53. 
6  Kamper  v.  Hawkins  (1793),  3  Va.  20,  72. 


FUNDAMENTAL  PRINCIPLES  29 

lawful  though  unauthorized  act  of  the  whole  people,  or  by  a 
spontaneous  act,  provided  that  in  the  case  of  such  spontaneous 
act,  it  be  later  ratified  by  some  higher  power,  i.  e.  either  Con- 
gress in  the  case  of  a  Territory,  or  the  people  themselves  in  the 
case  of  the  State.  The  people  can  speak  only  through  their 
representatives,  the  voters,  and  the  voters  can  speak  only  at  a 
regular  election. 

It  is  not  necessary  that  a  given  action  be  either  authorized 
or  prohibited  by  the  constitution;  it  may  be  permitted  by  not 
being  mentioned  at  all,  or  it  may  be  valid  because  outside  the 
power  of  the  constitution. 


Chapter  III 
ANALYSIS  OF  QUESTIONS 

In  the  light  of  the  historical  development  of  constitutional 
conventions  and  of  the  fundamental  principles  already  dis- 
cussed, we  are  now  prepared  to  analyze  the  various  questions, 
for  the  object  of  answering  which  this  book  is  written. 

First,  let  us  observe  the  French  proverb,  "Definissons  nos 
termes!" 

The  term  "constitutional  convention"  is  not  felicitous,  for 
the  word  "constitutional"  may  mean  to  some  people  "author- 
ized by  the  constitution,"  and  to  others  merely  "relating  to 
the  constitution."  Hence  the  apparent  anomaly  of  the  phrase 
"an  unconstitutional  constitutional  convention."  Therefore, 
a  "constitutional  convention,"  as  used  in  this  book,  may  be 
defined  as  "a  convention  employed  as  a  step  toward  framing 
or  revising  a  constitution."  To  avoid  ambiguity,  such  con- 
ventions will  nearly  always  be  referred  to  merely  as  "conven- 
tions," omitting  the  word  "constitutional."  To  the  same  end, 
the  word  "constitutional"  will  never  be  used  immediately 
preceding  the  word  "convention"  to  indicate  the  constitution- 
ality of  the  convention;  but  rather  some  circumlocution  will  be 
employed. 

Even  when  used  to  refer  to  the  constitutionality  of  the  con- 
vention, the  terms  "constitutional"  and  "unconstitutional" 
present  an  ambiguity.  "Constitutional,"  as  we  have  seen  in 
the  preceding  chapter,  may  refer  either  to  something  authorized 
by  the  constitution,  or  to  something  valid  through  not  being 
prohibited  by  the  constitution,  or  even  to  something  which  is 
legal  because  beyond  the  control  of  the  constitution.  "Un- 
constitutional" may  mean  the  reverse  of  any  of  those  three 
things.  As  used  in  this  book,  the  term  "constitutional"  will 
be  used  only  to  apply  to  matters  over  which  the  constitution 
has  control,  and  which  in  the  exercise  of  that  control  it  either 
authorizes  or  omits  to  prohibit. 


ANALYSIS  OF  QUESTIONS  31 

A  circumlocution  will  be  used,  whenever  possible,  in  place  of 
the  word  "submission";  for  this  word  might  equally  well  mean 
"acquiescence  in"  or  "reference  to." 

"  Revolution,"  as  applied  to  conventions,  is  a  word  upon  which 
there  can  be  no  possibility  of  agreement.  Jameson,  Dodd, 
Braxton,  and  others  insist  that  popular  conventions  are  not 
revolutionary,  and  reserve  the  term  "revolution"  for  sponta- 
neous conventions  alone. 

Dodd  says: 

The  convention  ...  is  in  no  sense  a  revolutionary  .  .  .  body.1 

Braxton  says: 

A  constitutional  convention  is  a  normal  and  legal  institution, 
...  it  involves  neither  revolution  nor  a  dissolution  of  the  ordinary 
government,  even  in  theory. 

In  the  earlier  days  existing  social  systems  did  not  contemplate  the 
legal  possibility  of,  and  therefore  made  no  provision  for,  any  fun- 
damental change  in  their  constitutions:  hence,  the  only  means  of 
effecting  such  change  was,  by  revolution,  to  overthrow  the  exist- 
ing government,  and,  by  force,  either  to  engraft  upon  it  the  desired 
changes,  or  else  to  substitute  an  entirely  new  system  in  its  place. 
But,  as  the  science  of  government  became  better  understood,  and 
the  great  doctrine  of  the  right  (not  merely  the  power)  of  the  people 
to  change  their  government,  was  promulgated,  it  was  found  that  it 
was  not  necessary  to  resort  to  revolution  in  order  to  change  or 
modify  government,  but  that  such  changes  or  modifications  might 
be  made  as  peacefully,  as  orderly  and  as  legally  as  any  ordinary 
function  of  government  could  be  exercised.  From  the  idea  in- 
volved in  this  doctrine  grew  the  modern  Constitutional  Convention, 
an  institution  so  far  unconnected  and  inconsistent  with  revolution, 
either  peaceful  or  violent,  that  its  whole  purpose  and  raison  d'etre 
is  to  prevent,  and  do  away  with,  the  necessity  of  excuse  for  revolu- 
tion —  in  fact,  it  might  properly  be  called  the  "  Anti-Revolutionary 
Convention."  2 

But  it  is  to  be  remembered  that  Dodd  and  Braxton  wrote 
in  States  (Illinois  and  Virginia  respectively)  where  conventions 
are  held  under  the  authority  of  constitutions.  Accordingly 
their  views  as  to  all  conventions  are  colored  by  the  fact  that  the 

1  Dodd,  p.  72. 

2  VII  "Va.  Law  Reg.,"  79,  96,  81. 


32  CONSTITUTIONAL  CONVENTIONS 

conventions  with  which  they  have  had  to  deal  have  been  of  the 
authorized  variety.     Similarly  the  present  author's  point  of 
view  may  be  colored  by  the  fact  that  conventions  in  Massachu- 
setts are  generally  recognized  as  being  revolutionary. 
The  Supreme  Court  of  Pennsylvania  says: 

It  is  not  pretended  that  the  late  convention  sat  as  a  revolu- 
tionary body.1 

If  they  are  correct  in  their  theory  that  conventions,  sanctioned 
by  the  inalienable  right  of  the  people  and  assisted  by  the  exist- 
ing legislature,  are  not  revolutionary,  then,  by  their  test,  the 
secession  conventions  of  the  Southern  States  were  not  revolu- 
tionary, nor  is  even  the  coming  constitutional  convention  in 
Russia. 

By  "revolution"  they  probably  mean  "revolution  by  vio- 
lence." But  violence  or  lack  of  violence  ought  not  to  be  the 
test  in  determining  the  fundamental  nature  of  a  governmental 
overturn. 

In  the  words  of  Reverend  William  B.  Greene: 

It  is  not  necessary,  in  order  that  there  be  a  revolution,  that  there 
should  be  blood  shed,  powder  burned,  and  other  attendants  of  war 
displayed.  A  revolution  may  take  place  peaceably,  and  if  the  right 
is  once  recognized  in  a  country,  it  should  take  place  peaceably,  be- 
cause in  the  recognition  of  that  right,  is  also  the  recognition  of  the 
duty  of  obedience  upon  the  part  of  the  Government.2 

Walker  uses  the  word  "revolution"  in  the  same  sense  when 
he  says: 

But  it  is  needless  to  enlarge  upon  the  general  right  of  revolution. 
It  must  of  necessity  exist,  whenever  a  majority  desire  it,  even 
though  the  existing  government  should  be  in  terms  made  perpet- 
ual, as  some  of  the  provisions  in  our  constitutions  are  declared 
to  be.3 

Gen.  Benjamin  F.  Butler,  leader  of  the  majority  in  the  Massa- 
chusetts convention  of  1853,  expressed  the  sentiments  of  his 
party  when  he  said  in  that  body: 

1  Wells  v.  Bain  (1872),  75  Pa.  No.  39,  48. 

2  Deb.  Mass.  Conv.  of  1853,  I,  129. 

8  Walker,  "American  Law"  (11  ed.),  p.  231. 


ANALYSIS  OF  QUESTIONS  33 

Are  we  not  now  engaged  in  a  revolution  —  a  peaceful  revolution 
by  the  ballot-box,  and  not  by  the  sword  and  the  bayonet?  Sir, 
these  are  revolutionary  times,  so  far  as  the  Government  is  con- 
cerned. We  are  assembled  to  revolutionize,  so  far  as  it  may  be 
judged  expedient,  the  organic  structure  of  our  present  Constitu- 
tion. I  look  upon  this  whole  proceeding  of  calling  a  convention  as 
a  mode  of  revolution  by  which  we  may  peaceably  accomplish  that 
which  in  other  countries  is  attained  by  the  sword,  and  by  force. 
Here,  through  the  medium  of  the  ballot-box,  the  people  take  to 
themselves  the  supreme  control  of  the  whole  machinery  of  the 
government.1 

However,  as  already  said,  it  will  be  impossible  to  agree  on 
this  term.  Dispute  would  be  profitless.  Accordingly,  let  us 
agree  that,  for  the  purposes  of  this  book,  the  author  will  use  the 
word  "revolution"  to  mean  any  overturn  unauthorized  by  the 
constitution. 

The  New  York  Supreme  Court  nearly  reaches  this  definition, 
when  it  says: 

A  change  in  the  fundamental  law,  when  not  made  in  the  form 
which  that  law  has  prescribed,  must  always  be  a  work  of  the  ut- 
most delicacy.  Under  any  other  form  of  government  than  our  own, 
it  could  amount  to  nothing  less  than  a  revolution.2 

They  might  have  added,  "And  under  ours  it  is  revolutionary, 
even  though  not  a  revolution." 

And  the  Rhode  Island  Supreme  Court,  although  denying  the 
lawfulness  of  conventions,  says  that  if  there  is  any  such  law,  it 
is  a  law  of  revolutionary  rather  than  of  constitutional  change.3 

Ruling  Case  Law  says: 

An  attempt  by  the  majority  to  change  the  fundamental  law  in 
violation  of  the  self-imposed  restrictions  is  unconstitutional  and 
revolutionary.4 

Having  disposed  of  the  foregoing  definitions,  we  ought  next 
to  proceed  to  classify  the  various  sorts  of  constitution  conven- 
tions. Now,  the  convention  is  only  one  of  the  many  means  for 
altering  the  form  of  government. 

i  Deb.  Mass.  Conv.  of  1853,  I,  78-79. 
2  Journal,  69th  N.  Y.  Assembly,  p.  920. 

*  Opinion  of  Justices  (1883),  14  R.  I.  649,  654. 

*  6  R.  C.  L.,  §  16. 


34  CONSTITUTIONAL  CONVENTIONS 

We  have  seen,  during  the  discussion  of  fundamental  princi- 
ples in  the  last  chapter,  that  changes  of  government  may  be 
either  authorized,  popular,  or  spontaneous.1 

Among  the  authorized  methods  are:  amendment  by  legisla- 
tive action,  amendment  by  popular  vote  after  submission  by  the 
legislature,  amendment  by  the  initiative,  and  amendment  by 
convention. 

With  respect  to  a  popular  uprising,  the  convention  is  appar- 
ently the  only  method  whereby  the  form  of  government  can 
be  legally  changed  in  disregard  of  constituted  authority;  al- 
though if  the  question  of  amendment  could  get  on  to  the  ballot 
at  a  regular  election  in  some  other  unauthorized  way,  the  action 
of  the  electors  in  ratifying  it  would  probably  be  just  as  binding. 

Spontaneous  methods  of  change  of  government  all,  in  the 
last  analysis,  depend  upon  force  for  their  success;  therefore  it 
is  immaterial  in  which  of  the  many  possible  spontaneous  ways  a 
constitution  is  promulgated,  if  it  be  later  established  by  force. 
The  force  is  all  that  is  material.  Success  succeeds,  and  failure 
fails;  no  other  difference  is  apparent  between  successful  and 
unsuccessful  spontaneous  conventions. 

Thus  each  of  the  three  classes  of  changes  in  constitutions  — 
to  wit,  authorized,  popular,  and  spontaneous  —  may  take  the 
form  of  a  convention;  and  accordingly  we  have  as  the  three 
sorts  of  conventions  to  be  considered  in  this  book,  the  author- 
ized convention,  the  popular  convention,  and  the  spontaneous 
convention. 

The  spontaneous  convention  we  may  disregard,  as  it  is  bound 
by  no  law  and  derives  whatever  force  it  may  have  from  subse- 
quent events,  rather  than  from  the  way  in  which  it  is  either  con- 
stituted or  conducted.  Spontaneous  conventions  are  without  the 
form  of  law  and,  therefore,  cannot  possibly  provide  us  with 
useful  precedents. 

This  book  aims  to  discuss  the  nature,  powers,  and  limitations 
of  both  authorized  and  popular  conventions.  The  nature  of 
authorized  conventions  depends  largely  upon  the  source  of  the 
authority.  But  popular  conventions  all  probably  derive  their 
authority  from  the  people,  although  this  is  disputed  by  Jameson, 
who  asserts  that  they  derive  their  authority  from  the  legislature. 
A  whole  chapter  will  be  devoted  to  discussing  this  point  of  dis- 
1  See  p.  15,  supra. 


ANALYSIS  OF  QUESTIONS  35 

agreement.1  The  question  of  whether  the  legislature  calls  the 
convention  leads  us  to  the  question  of  whether  the  legislature 
can  call  itself  a  convention,  to  which  question  a  chapter  will  be 
devoted.2 

The  question  naturally  arises  in  connection  with  popular  con- 
ventions as  to  whether,  inasmuch  as  they  are  not  authorized  by 
the  constitution,  they  are  not  thereby  rendered  unconstitutional 
and  void.    A  chapter  will  be  devoted  to  this  point  also.3 

Aside  from  the  question  of  the  source  of  authority  of  the  two 
sorts  of  conventions,  there  are  the  questions  of  their  relation 
to  the  other  departments  of  government,  the  relative  powers  of 
the  various  departments,  and  the  extent  to  which  any  of  the 
departments  can  interfere  with  the  convention  or  the  conven- 
tion interfere  with  any  of  the  departments. 

Accordingly,  inter  alia,  we  shall  consider  whether  the  State 
executive  has  power  to  interfere  with  both  sorts  of  convention 
under  various  provisions  or  lack  of  provisions  in  the  State 
constitutions,  and  also  whether  the  Federal  executive  has  power 
to  intervene  in  determining  the  legality  of  convention  action 
in  one  of  the  States.  One  chapter  will  be  devoted  to  these  con- 
siderations.4 

Next  as  to  the  legislative  department.  Judge  Jameson's 
entire  work  on  constitutional  conventions  was  written  with  the 
view  to  proving  the  supremacy  of  the  legislative  branch  over  the 
convention.5  For  the  purposes  of  his  discussion,  he  assumed  that 
all  conventions,  whether  called  at  the  one  extreme  under  the 
provisions  of  the  State  constitution,  or  at  the  other  by  a  direct 
vote  of  the  people,  were  in  either  event  the  creatures  of  the  legis- 
lature and  hence  subject  to  its  control.  Also,  he  treated  the 
question  of  the  power  of  the  legislature  to  amend  the  statute 
calling  a  convention,  as  being  merely  a  question  of  the  right  of  the 
legislature  to  control  the  convention;  whereas  in  reality  it  in- 
volves three  questions:  i.  e.  the  power  of  the  legislature,  the 
source  of  the  statute,  and  whether  the  legislature  can  amend  an 
act  passed  by  the  people. 

The  question,  here  involved,  of  the  power  of  the  legislature, 
is  the  same  question  that  is  involved  in  considering  whether  the 

1  Chapter  V,  infra.  2  Chapter  VI,  infrco 

3  Chapter  IV,  infra.  4  Chapter  VII,  infra. 

6  Dodd,  p.  73. 


36  CONSTITUTIONAL  CONVENTIONS 

legislature  can  restrict  a  convention  by  the  terms  of  the  original 
convention  act. 

The  question  of  who  enacts  the  convention  act  is  the  same 
question  as  that  already  referred  to,  relating  to  the  source  of 
authority  of  popular  conventions.  The  question  as  to  whether 
the  legislature  can  amend  a  statute  passed  by  the  people  in  their 
sovereign  capacity  is  self-explanatory. 

These  three  questions  last  referred  to  are  each  treated  in  a 
separate  chapter.1 

The  restricting  of  the  convention  by  the  original  convention 
act,  if  it  be  submitted  to  the  people,  instead  of  being,  as  we  have 
just  supposed,  enacted  by  the  legislature  alone,  involves  the 
question  of  the  power  of  the  people  to  restrict  the  convention. 
This  same  question  is  involved  when  we  discuss  whether  con- 
stituents have  a  right  to  give  binding  instructions  to  a  conven- 
tion delegate.  Popular  control  of  conventions  is  the  subject  of 
one  of  the  chapters.2 

In  contradistinction  to  the  idea  of  legislative  or  even  popular 
control,  is  the  theory  that  the  convention,  once  launched,  be- 
comes the  sovereign,  and  remains  supreme  so  long  as  it  is  in 
existence.  Conventions,  claiming  this  degree  of  sovereignty, 
have  exercised  extraordinary  powers,  including  the  enactment 
of  legislation  and  the  removal  of  executive  officers.  They  have 
even  tried  to  amend  the  convention  act  by  which  they  them- 
selves were  created.  Extraordinary  powers  claimed  by  conven- 
tions, including  interference  with  the  legislative  and  executive 
branches,  form  the  contents  of  one  chapter.3 

Two  questions  closely  related  to  each  other  are:  whether  the 
constitution  applies  to  conventions,  and  whether  the  courts  will 
interfere  with  conventions.  Some  people  might  assume  that  these 
are  the  same  question;  but  it  is  clear  that  the  constitution  may 
perhaps  apply,  and  yet  that  the  courts  may  in  some  cases  re- 
fuse to  interfere  with  the  convention,  on  the  ground  that  it  is 
a  coordinate  government  body,  and  is  therefore  the  judge  of 
its  own  constitutional  limitations;  in  other  words,  that  the  ques- 
tions involved  are  political  rather  than  legal.  On  the  other 
hand,  the  courts  may  interfere  with  a  convention,  on  grounds 

1  See  Chapter  IX  on  the  power  of  the  legislature;  Chapter  V  on  the  source 
of  the  statute;  and  Chapter  VIII  on  the  power  to  amend. 

2  Chapter  X,  infra.  ■  Chapter  XI,  infra. 


ANALYSIS  OF  QUESTIONS  37 

not  furnished  by  the  constitution.  Then,  too,  a  court  might 
also  render  assistance  to  a  convention  in  enforcing  its  rights  and 
powers.  Accordingly,  the  author  has  tried  to  divide  those  some- 
what interrelated  questions  into  two  chapters,  one  dealing  with 
judicial  intervention,1  and  the  other  dealing  with  the  question 
as  to  whether  the  constitution  applies  to  conventions.2 

It  is  obvious  that  as  all  bodies  have  some  incidental  powers 
beyond  the  strict  duties  of  such  bodies,  so  also  the  convention 
must  have  some  incidental  powers  which  do  not  strictly  relate 
to  the  framing  of  a  constitution.  These  are  discussed  in  a  sep- 
arate chapter,  which  deals  with  the  internal  control  of  the  con- 
vention by  itself;  and  to  this  chapter  the  author  has  added 
some  words  on  the  privileges  of  the  individual  members.3 

Not  only  is  the  legal  status  of  the  convention  important,  but 
also  the  legal  status  of  the  individual  delegates.  Are  they 
public  officers,  and  should  they  take  an  oath  to  support  the 
constitution  which  they  are  engaged  in  overturning?  Ought 
they  to  take  any  oath  of  office?  These  questions  form  the 
subject  matter  of  another  chapter,  on  the  status  of  delegates.4 

The  questions  of  the  need  and  method  of  submission  of 
amendments  by  the  convention  to  the  electorate,  are  inciden- 
tally touched  upon  under  almost  every  phase  of  the  subject  of 
constitutional  conventions.  There  is  involved  the  applicability 
of  constitutional  provisions,  the  binding  force  of  the  convention 
act,  the  power  of  the  legislature  to  amend  that  act,  and  the 
right  of  judicial,  executive,  or  popular  interference.  Yet  the 
questions  of  the  need  and  method  of  submission  of  the  amend- 
ments are  so  important  in  themselves  that  the  authorities  and 
precedents  have  been  collected  in  one  chapter.5 

A  final  matter  for  consideration  is  the  doctrine  that  the 
validity  and  effect  of  all  constitutional  changes  depends,  in 
the  last  analysis,  upon  "getting  away  with  it";  in  other  words, 
on  the  people  and  the  existing  government  accepting  and 
acquiescing  in  the  change.  One  chapter  is  devoted  to  this 
doctrine  of  acquiescence.6 

The  concluding  chapter  of  the  book  is  a  summary  of  the  an- 
swers to  the  questions  presented  and  analyzed  in  this  chapter.7 

1  Chapter  XII,  infra.       2  Chapter  XIII,  infra.        8  Chapter  XIV,  infra. 
4  Chapter  XV,  infra.       6  Chapter  XVI,  infra.         6  Chapter  XVII,  infra. 
7  Chapter  XVIII,  infra. 


Chapter  IV 
POPULAR  CONVENTIONS  ARE  LEGAL 

The  exact  legal  status  of  popular  conventions  (i.  e.  those 
conventions  which  are  held  in  such  an  orderly  manner  as  clearly 
to  represent  the  popular  will,  and  yet  which  are  not  expressly 
authorized  by  the  existing  constitution)  is  a  very  important 
matter  to  consider. 

As  we  saw  in  Chapter  II,  any  given  method  of  amending 
the  constitution  of  a  State  may  be  either  (1)  authorized  by 
the  constitution,  or  (2)  permitted  because  not  prohibited  or 
because  the  constitution  is  powerless  to  prohibit,  or  (3)  effectu- 
ally prohibited.1 

In  which  class  does  the  popular  convention  fall?  There  are 
authorities  for  placing  this  sort  of  convention  in  each  of  the 
three  classes. 

It  might  seem  at  first  glance  that  the  convention  method  of 
amending  the  constitution  could  not  possibly  be  legal  except 
in  the  cases  in  which  the  State  constitution  expressly  authorizes 
this  method;  and  yet  if  this  were  so,  the  legality  of  at  least  one 
of  the  many  such  conventions  which  have  been  held  throughout 
the  United  States,  would  certainly  have  been  questioned  before 
this. 

We  have  already  discussed  historically  a  number  of  these 
instances.2  Practically  all  the  original  constitutions  of  the 
thirteen  colonies  and  Vermont  were  framed  by  popular  con- 
ventions held  by  revolutionary  governments  without  any 
further  legal  sanction  than  the  will  of  the  people  as  expressed 
through  their  electorate.  Thus  the  Supreme  Court  of  Virginia 
has  said: 

I  The  convention  of  Virginia  had  not  the  shadow  of  a  legal,  or 
constitutional  form  about  it.  It  derived  its  existence  and  authority 
from  a  higher  source;  a  power  which  can  supersede  all  law,  and 

1  See  p.  26,  supra.  a  See  Chapter  I,  supra. 


POPULAR  CONVENTIONS  ARE  LEGAL  39 

annul  the  constitution  itself  —  namely,  the  people,  in  their  sover- 
eign, unlimited,  and  unlimitable  authority  and  capacity.1 

Some  of  these  constitutions,  now  recognized  as  valid,  did 
not  even  have  this  sanction,  and  may  therefore  be  regarded 
as  merely  factional. 

The  Constitution  of  the  United  States  was  superimposed 
upon  the  various  State  constitutions  without  any  authority 
derived  from  any  of  them,  and  in  direct  violation  of  the  pro- 
vision of  the  Articles  of  Confederation.2  Not  only  this,  but 
it  might  legally  have  been  adopted  by  the  people  of  the  various 
States,  against  the  will  of  the  various  State  governments,  for 
the  United  States  Supreme  Court  has  said: 

The  assent  of  the  States,  in  their  sovereign  capacity,  is  implied 
in  calling  a  Convention,  and  thus  submitting  that  instrument  to 
the  people.  But  the  people  were  at  perfect  liberty  to  accept  or 
reject  it ;  and  their  act  was  final.  It  required  not  the  affirmance,  and 
could  not  be  negatived,  by  the  State  governments.  The  consti- 
tution, when  thus  adopted,  was  of  complete  obligation,  and  bound 
the  State  sovereignties. 

It  has  been  said  that  the  people  had  already  surrendered  all 
their  powers  to  the  State  sovereignties,  and  had  nothing  more  to 
give.  But,  surely,  the  question  whether  they  may  resume  and 
modify  the  powers  granted  to  government  does  not  remain  to 
be  settled  in  this  country.3 

Most  of  the  secession  conventions  were  popular,  or  even 
spontaneous.  Many  new  States  have  been  admitted  to  the 
Union  under  constitutions  framed  by  the  people  without  the 
authority  of  Congress,  but  Congress  has  ratified  the  illegal 
action  in  admitting  them. 

But  the  most  important  precedents  for  the  purposes  of  the 
present  discussion  are  States,  which,  although  at  peace  under 
a  duly  established  constitution  which  did  not  provide  for  the 
holding  of  a  constitutional  convention,  nevertheless  held  con- 
ventions, the  legality  of  which  has  not  been  questioned. 

Jameson  mentions  twenty-seven  such  conventions  held  prior 
to  1887.4 

1  Kamper  v.  Hawkins  (1793),  3  Va.  20,  74.1 

2  Articles  of  Confederation,  Art.  XIII.     See  p.  49,  infra. 

3  McCulloch  v.  Maryland  (1819),  4  Wheat.  316,  404. 

4  Jameson,  p.  210,  n.  1.  These  conventions  are  as  follows:  Arkansas,  1874; 
Connecticut,  1818;   Georgia,  1833  and  1839;   Indiana,  1850;   Louisiana,  1852 


40  CONSTITUTIONAL  CONVENTIONS 

Dodd  reports  three  more  prior  to  1908,  to  wit:  Missouri  in 
1890,  Louisiana  in  1898,  and  Connecticut  in  1902.1  Since  1908, 
no  popular  conventions  have  been  held:  but  Massachusetts 
is  holding  one  in  1917,  and  Indiana  is  to  hold  one  in  1918. 

Jameson  has  the  following  to  say  on  the  legality  of  such 
conventions : 

The  question  of  the  legitimacy  of  Conventions  thu's  called,  I 
shall  have  occasion  to  consider  in  other  parts  of  this  work,  when 
treating  of  the  relations  of  legislatures  to  Conventions,  and  of  the 
powers  of  the  former  resulting  from  those  relations.  I  shall, 
therefore,  here  only  observe,  —  1.  That,  whenever  a  Constitution 
needs  a  general  revision,  a  Convention  is  indispensably  necessary; 
and  if  there  is  contained  in  the  Constitution  no  provision  for  such 
a  body,  the  calling  of  one  is,  in  my  judgment,  directly  within  the 
scope  of  the  ordinary  legislative  power;  and,  2.  That,  were  it 
not  a  proper  exercise  of  legislative  power,  the  usurpation  has  been 
so  often  committed  with  the  general  acquiescence,  that  it  is  now 
too  late  to  question  it  as  such.  It  must  be  laid  down  as  among 
the  established  prerogatives  of  our  General  Assemblies,  that,  the 
Constitution  being  silent,  whenever  they  deem  it  expedient,  they 
may  call  Conventions  to  revise  the  fundamental  law.2 

Cooley  and  the  Supreme  Courts  of  Alabama,  Louisiana,  and 
North  Dakota  have  also  said  that,  in  the  absence  of  any  pro- 
hibition in  the  State  constitution,  a  convention  may  be  lawfully 
held.3 

Dodd  says,  following  Jameson's  line  of  thought: 

It  has  now  become  the  established  rule  that  where  the  constitu- 
tion contains  no  provision  for  the  calling  of  a  convention,  but 
has  no  provision  expressly  confining  amendment  to  a  particular 
method,  the  legislature  may  provide  by  law  for  the  calling  of  a  con- 
vention —  that  is,  the  enactment  of  such  a  law  is  within  the  power 

and  1879;  Massachusetts,  1853;  Missouri,  1845, 1861,  and  1865;  New  Jersey, 
1844;  New  York,  1801,  1821,  and  1846;  North  Carolina,  1835;  Pennsylvania, 
1837  and  1872;  Rhode  Island,  1824,  1832,  1841,  and  1842;  South  Carolina, 
1790;  Tennessee,  1870;  Texas,  1876;  Virginia,  1829  and  1850.  To  this  list 
there  should  probably  be  added  at  least  the  following:  Massachusetts,  1820; 
Delaware,  1791  and  1852;   Maryland,  1850. 

1  Dodd,  p.  44. 

2  Jameson,  pp.  210-211. 

8  Cooley,  Const.  Lims.  (7  ed.),  p.  56;  Collier  v.  Frierson  (1854),  24  Ala.  100, 
108;  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  413;  State  v.  Dahl  (1896), 
6  N.  D.  81. 


POPULAB  CONVENTIONS  ARE  LEGAL  41 

of  the  legislature  unless  expressly  forbidden,  and  is  considered  a 
regular  exercise  of  legislative  power.1 

There  are  now  twelve  States  which  have  no  express  con- 
stitutional provisions  for  the  calling  of  conventions,2  yet  in 
eight  of  these,  to  wit,  Arkansas,  Connecticut,  Louisiana,  Missis- 
sippi, New  Jersey,  Pennsylvania,  Texas,  and  Massachusetts, 
conventions  have  been  held  without  any  serious  question 
being  made  as  to  their  legality. 

In  Rhode  Island  the  question  of  holding  a  convention  was 
in  1853  twice  submitted  to  the  people,  but  further  submission 
of  the  question  has  been  effectively  discouraged  by  an  adverse 
opinion  of  the  Supreme  Court  of  that  State.3 

In  Vermont,  the  special  commission  appointed  in  1908  to 
present  to  the  next  legislature  proposals  of  amendment  to  the 
constitution,  although  it  proposed  some  changes  in  the  amend- 
ment clause,  nevertheless  omitted  to  propose  the  convention 
method  and  yet  suggested  the  possibility  of  holding  a  con- 
vention, thus  showing  that  in  its  opinion  express  constitutional 
authorization  would  be  unnecessary.4 

The  North  Dakota  Supreme  Court  has  decided  that  the  un- 
authorized convention  would  be  lawful  in  that  State.5  This 
opinion  has  recently  been  reiterated  by  the  Attorney-General 
of  that  State.6 

Some  doubt  has  been  expressed  as  to  whether  the  Indiana 
convention  of  1850  furnishes  a  precedent  for  holding  a  con- 
vention under  the  present  constitution  there.  Although  the 
constitution  then  in  force  authorized  the  holding  of  conventions, 
it  cannot  be  considered  as  authorizing  the  convention  of  1850, 
for  the  conventions  authorized  by  the  constitution  were  to  be 
held  in  1828,  1840,  1852,  etc.  It  would  seem,  however,  that  it 
is  even  a  stronger  disregard  of  the  constitution  to  hold  a  con- 
vention whenever  you  please,  under  a  constitution  which  says 
you  may  hold  it  in  1828,  1840,  or  1852,  than  to  hold  a  conven- 
tion whenever  you  please,  under  a  constitution  which  makes  no 
mention  of  conventions;  just  as  it  would  be  more  disobedient 

1  Dodd,  p.  44. 

2  "Columbia  Dig.,"  p.  21. 

3  Opinion  of  Justices  (1883),  14  R.  I.  649. 

4  Report  of  Jan.  6,  1910,  pp.  3, 18. 
B  State  v.  Dahl  (1896),  6  N.  D.  81. 

6  N.  D.  House  Journal,  Jan.  26, 1917. 


42  CONSTITUTIONAL  CONVENTIONS 

for  a,  child  to  go  down-town  at  2:00,  after  obtaining  permission 
to  go  at  3:00,  than  it  would  if  his  parents  had  never  in  all  his 
life  mentioned  the  subject  of  going  down-town. 

The  Supreme  Court  of  Indiana  has  asserted  the  legality  of 
this  convention.1  The  present  constitution  of  Indiana  contains 
no  provision  for  the  holding  of  conventions,  yet  one  is  about 
to  be  held  there  in  1918.  But  it  is  possible  that  this  State,  by 
striking  out  the  convention  provision  from  her  constitution, 
manifested  an  intention  never  again  to  have  a  convention.2 

Thus  we  see  that  in  all  of  the  twelve  States  whose  constitu- 
tions are  silent  on  the  subject,  except  Rhode  Island,  and  possibly 
Indiana,  conventions  can  now  be  held. 

Let  us  now  consider  the  legal  authorities  which  hold  that  this 
ought  not  to  be  so. 

In  several  of  the  conventions  of  this  class,  the  objection  has 
been  raised  that  they  were  illegitimate  bodies  because  called 
without  special  authority  in  the  respective  constitutions.3 

But  as  Jameson  points  out: 

The  objection  has  commonly  been  urged  by  a  minority,  whose 
party  or  other  interests  inclined  them  to  look  with  disfavor  upon 
any  change  in  the  existing  Constitution.4 

In  spite  of  the  ulterior  nature  of  their  motives,  however,  their 
views  have  found  the  way  into  some  textbooks  and  encyclo- 
pedias.    The  following  is  an  example: 

The  people  must  act  by  majorities,  and  in  adopting  the  consti- 
tution the  majority  which  does  so  has  in  effect  prescribed  the 
method  by  which  the  majority  of  the  people  may  alter  or  amend  it. 
An  attempt  by  the  majority  to  change  the  fundamental  law  in 
violation  of  the  self-imposed  restrictions  is  unconstitutional  and 
revolutionary.5 

And,  as  Jameson  says,  these  objections  gain  some  plausibility 
because  of  the  existence  of  other  methods  of  amending  the 
respective  constitutions. 

There  having  been  provided,  it  has  been  said,  a  mode  in  which 
constitutional  changes  might  be  effected,  it  was  a  violation  of  legal 

1  EUingham  v.  Dye  (1S12),  178  Ind.  336,  377-378. 

2  N.  D.  House  Journal,  Jan.  26,  1917. 

3  Jameson,  p.  211,  n.  3. 

4  Jameson,  p.  211.  5  6  R.  C.  L.,  §  16. 


POPULAR  CONVENTIONS  ARE  LEGAL  43 

analogy  to  infer  a  power  to  do  substantially  the  same  thing  in 
another  way,  not  authorized  specifically  by  the  Constitution,  ac- 
cording to  the  well  established  rule,  expressio  unius  est  exclusio 
alterius.1 

This  was  exactly  the  line  of  reasoning  pursued  by  the  only 
real  legal  authority  against  the  validity  of  popular  conventions, 
namely,  the  Supreme  Court  of  Rhode  Island.  In  an  opinion 
rendered  to  the  legislature  in  1883,  this  court  said: 

The  ordinary  rule  is  that  where  power  is  given  to  do  a  thing  in 
a  particular  way,  there  the  affirmative  words,  marking  out  the  par- 
ticular way,  prohibit  all  other  ways  by  implication,  so  that  the 
particular  way  is  the  only  way  in  which  the  power  can  be  legally 
executed. 

The  mode  provided  in  the  Constitution  for  the  amendment 
thereof  is  the  only  mode  in  which  it  can  be  constitutionally 
amended.  .  .  .  Expressio  unius  est  exclusio  alterius.  .  .  .  One 
of  the  greatest  of  modern  jurists,  Chief  Justice  Shaw,  was  of  the 
same  way  of  thinking,  and,  conjointly  with  his  associates,  declared 
it  to  be  his  opinion  that  the  Constitution  of  Massachusetts  is 
constitutionally  amendable  only  as  therein  provided.  .  .  .  Any 
law  inconsistent  with  it  is  void,  and,  therefore,  if  the  provision 
which  it  contains  for  its  own  amendment  is  exclusive,  implying 
a  prohibition  of  amendments  in  any  other  manner,  then,  of  course, 
any  act  of  the  Assembly  providing  for  a  convention  to  amend  the 
Constitution  is  unconstitutional  and  void.2 

It  will  be  noticed  that  this  opinion  apparently  cites  the  Su- 
preme Court  of  Massachusetts  as  being  of  like  mind;  yet  a 
careful  analysis  of  the  language  used  by  each  court  will  show 
that  the  Providence  Court  does  not  so  cite  the  Massachusetts 
Court,  and  that  the  Massachusetts  Court  did  not  so  hold. 

Before  discussing  the  Massachusetts  opinion  itself,  however, 
let  us  first  take  up  another  interpretation  of  it.  Attorney- 
General  Attwill  of  Massachusetts,  in  a  legal  opinion  rendered 
to  the  legislature  of  1917,  squarely  cites  the  Massachusetts 
Supreme  Court  as  denying  the  validity  of  constitutional  con- 
ventions in  that  State;  but  having  unnecessarily  cited  the  court 
as  taking  this  extreme  position,  he  then  proceeds  to  overrule 
the  court  by  himself  taking  the  opposite  extreme  position  of 
holding  that  the  convention  is  not  only  legal,  but  is  expressly 

1  Jameson,  p.  211.  *  14  R.  I.  649,  651. 


44  CONSTITUTIONAL  CONVENTIONS 

authorized  by  the  Massachusetts  constitution.  The  material 
parts  of  his  opinion  are  as  follows: 

If  the  convention  called  to  revise,  alter  or  amend  the  Consti- 
tution pursuant  to  the  vote  of  the  people  at  the  last  annual  elec- 
tion, under  Gen.  St.  1916,  c.  98,  is  authorized  by  the  provisions  of 
our  present  Constitution,  the  position  of  a  delegate  to  the  con- 
vention is  a  "place  under  the  authority  of  the  Commonweal th." 

It  has  been  asserted  by  many,  and  seems  to  have  been  the  opin- 
ion of  the  justices  of  the  Supreme  Judicial  Court  in  an  opinion  to 
the  Legislature  (reported  in  6  Cush.  573)  that  article  IX  of  the 
Amendments  to  the  Constitution,  providing  a  method  for  the 
adoption  of  specific  and  particular  amendments  to  our  Constitu- 
tion, excluded  by  implication  any  authorization  to  the  people  to 
revise  or  change  it  by  the  convention  method,  and  this  view  is 
not  unsupported  by  other  authority.1 

He  then  quotes  the  various  provisions  of  the  Massachusetts 
constitution  which  recognize  the  right  of  the  people  to  alter 
their  form  of  government,  and  continues: 

„  This  incontestable,  unalienable  and  indefeasible  right,  which 
indeed  is  the  essence  of  a  republican  form  of  government,  cannot, 
in  my  judgment,  be  taken  away  except  by  plain  and  unmistakable 
language.  That  the  people  of  one  generation  can  deprive  the  people 
of  a  succeeding  generation  of  their  unalienable  right  to  reform, 
alter  or  totally  change  their  form  of  government,  except  in  a  re- 
stricted manner,  when  their  protection,  safety,  prosperity  and 
happiness  require  it,  is  repugnant  to  our  theory  of  government, 
that  the  right  to  govern  depends  upon  the  consent  of  the  governed. 
It  seems  to  me  a  much  more  reasonable,  if  not  a  necessary,  construc- 
tion of  the  Constitution  to  hold  that  article  IX  of  the  Amend- 
ments provides  only  a  manner  of  amending  the  constitution  in  addi- 
tion to  other  methods  that  may  be  adopted  by  the  people  of 
changing  their  form  of  government,  under  "the  fundamental  right 
guaranteed  by  the  Bill  of  Rights,  whenever  "their  protection, 
safety,  prosperity,  and  happiness"  require  it.  .  .  . 

Accordingly,  I  am  of  the  opinion  that  the  Convention  will  be 
held  under  the  authority  of  the  Commonwealth.2 

Thus  Attorney-General  Attwill,  the  latest  authority  on  the 
subject,  goes  to  the  opposite  extreme  from  the  Rhode  Island 

1  1917  Mass.  House  Doc.  1711,  p.  2. 

2  1917  Mass.  House  Doc.  1711,  pp.  2-3. 


POPULAR  CONVENTIONS  ARE   LEGAL  45 

Court,  and  goes  further  in  sustaining  the  validity  of  popular 
conventions  than  any  one  before  him.  It  would  seem  that  he 
goes  unnecessarily  far. 

Mr.  Attwill's  opinion  would  just  as  strongly  support  his 
conclusions  (without,  however,  being  as  at  present  a  rather 
forced  construction  of  the  constitution),  if  he  had  changed  the 
italicized  words  (the  italics  are  mine),  by  substituting  for  the 
word  "authorized"  the  words  "not  effectually  prohibited,"1 
and  for  the  word  "guaranteed"  the  word  "admitted."2  Read 
over  his  language  with  these  two  words  changed. 

Thus  we  find  the  Rhode  Jsland  Court  apparently  citing  the 
Massachusetts  Court  as  deciding  that  popular  conventions  are 
unconstitutional  and  void;  and  we  find  Mr.  Attwill  clearly 
so  citing  the  court,  but  attempting  to  overrule  it. 

Let  us  now  take  up  the  Massachusetts  case  itself,  and  see 
what  it  really  decided.    The  opinion  reads  as  follows: 

Under  and  pursuant  to  the  existing  Constitution,  there  is  no 
authority  given  by  any  reasonable  construction  or  necessary  im- 
plication, by  which  any  specific  and  particular  amendment  or 
amendments  of  the  Constitution  can  be  made,  in  any  other  manner 
than  that  prescribed  in  the  ninth  article  of  the  amendments 
adopted  in  1820.  Considering  that  previous  to  1820  no  mode  was 
provided  by  the  Constitution  for  its  own  amendment,  that  no 
other  power  for  that  purpose,  than  in  the  mode  alluded  to,  is 
anywhere  given  in  the  Constitution,  by  implication  or  otherwise, 
and  that  the  mode  thereby  provided  appears  manifestly  to  have 
been  carefully  considered,  and  the  power  of  altering  the  Constitu- 
tion thereby  conferred  to  have  been  cautiously  restrained  and 
guarded,  we  think  a  strong  implication  arises  against  the  exist- 
ence of  any  other  power,  under  the  Constitution,  for  the  same 
purposes.3 

It  will  be  noticed  that  all.  that  this  court  decided  was  that 
"under  and  pursuant  to  the  existing  constitution"  there  is  no 
authority  for  any  other  method  of  amendment  than  the  one 

1  See  p.  50,  infra.  • 

2  The  Bills  of  Rights  cannot  guarantee  the  self-evident  rights  asserted  in  the 
Declaration  of  Independence.  As  Jameson  says:  " If  the  truth  in  question  is  a 
self-evident  truth,  it  is  one  which  would  obtain  equally  whether  asserted  in  the 
Constitution  .«.  .  or  not."  Jameson,  p.  236,  cf.  p.  53,  infra.  Grinnell,  in  II 
"  Mass.  Law  Quarterly,"  p.  275,  agrees  with  the  author  in  the  foregoing  criticism. 

3  6  Cush.  573,  574. 


46  CONSTITUTIONAL  CONVENTIONS 

therein  provided;  in  other  words,  that  there  exists  no  other 
method  "under  the  constitution" 

The  Rhode  Island  Court  may  have  recognized  this,  for  it 
cites  the  Massachusetts  Court  as  holding  that  "the  constitution 
of  Massachusetts  is  constitutionally  amendable  only  as  therein 
provided."  * 

The  restrictions  placed  on  their  opinion  by  the  Massachu- 
setts Justices  will  be  better  understood,  if  we  glance  at  the 
opening  words  of  that  opinion,  which  are  not  usually  quoted  in 
this  connection.  The  legislature  had  attempted  to  ascertain 
from  the  court  whether  amendments  to  the  constitution  could 
be  made  in  any  other  manner  than  that  prescribed  in  the  con- 
stitution itself.  The  court  avoided  making  a  square  answer  to 
this  question,  although  it  was  obvious  that  what  the  legislature 
wanted  to  know  was  whether  they  could  legally  call  a  conven- 
tion to  revise  the  constitution.  The  court  opened  its  opinion 
with  these  significant  words: 

The  court  do  not  understand,  that  it  was  the  intention  of  the 
house  of  representatives,  to  request  their  opinion  upon  the  natural 
right  of  the  people  in  cases  of  great  emergency,  or  upon  the  obvious 
failure  of  their  existing  constitution  to  accomplish  the  objects  for 
which  it  was  designed,  to  provide  for  the  amendment  or  alteration 
of  their  fundamental  laws;  nor  what  would  be  the  effect  of  any 
change  and  alteration  of  their  constitution,  made  under  such  cir- 
cumstances and  sanctioned  by  the  assent  of  the  people.  Such  a 
view  of  the  subject  would  involve  the  general  question  of  natural 
rights,  and  the  inherent  and  fundamental  principles  upon  which 
civil  society  is  founded,  rather  than  any  question  upon  the  nature, 
construction,  or  operation  of  the  existing  constitution  of  the  com- 
monwealth, and  the  laws  made  under  it.  We  presume,  therefore, 
that  the  opinion  requested  applies  to  the  existing  constitution 
and  laws  of  the  commonwealth,  and  the  rights  and  powers  de- 
rived from  and  under  them.  Considering  the  questions  in  this 
light,  etc.,  etc.2 

Modern  interpretations  of  this  early  Massachusetts  opinion 
are  as  follows: 

It  was  assumed  in  the  opinion,  that  the  opinion  requested  ap- 
plies to  the  existing  constitution  and  laws  of  the  Commonwealth 
and  the  rights  and  powers  derived  from  and  under  them,  and  did 

1  14  R.  I.  649,  651.  *  6  Cush.  573,  574. 


POPULAR  CONVENTIONS  ARE   LEGAL  47 

not  depend  upon  the  natural  right  of  the  people  in  cases  of  great 
emergency,  or  upon  the  obvious  failure  of  their  existing  constitu- 
tion to  accomplish  the  objects  for  which  it  was  designed,  to  pro- 
vide for  the  amendment  and  alteration  of  their  fundamental 
laws.1 

It  was  contended  that  there  was  precedent  for  this  opinion 
[i.  e.  the  Rhode  Island  one]  in  an  earlier  opinion  of  the  supreme 
court  of  Massachusetts.  A  careful  study  of  the  opinion  of  the 
Massachusetts  court,  however,  shows  that  its  opinion  related  to 
another  matter.2 

Thus  the  Massachusetts  Court  recognizes  the  existence  of 
the  fundamental  principles  considered  in  the  second  chapter 
of  this  book,  and  the  existence  of  a  higher  authority  than  that 
of  the  constitution  itself.  And  although  the  court  speaks  of 
this  higher  right  as  existing  "in  cases  of  great  emergency,  or 
upon  the  obvious  failure  of  their  existing  constitution,"  3  yet 
the  right  has  not  been  limited  to  such  cases  in  actual  practice 
in  Massachusetts. 

There  the  legislature  in  1851  and  again  in  1852,  without  the 
existence  of  any  emergency,  submitted  to  the  voters  the  ques- 
tion of  holding  a  constitutional  convention.  On  its  second 
submission,  the  question  carried,  and  a  convention  was  held. 

Judge  Morton  of  the  Massachusetts  Supreme  Court,  after 
joining  with  his  colleagues  in  expressing  the  already  cited  opin- 
ion that  the  convention  method  was  unauthorized  by  the  con- 
stitution, ran  for  the  convention  of  1853  and  took  a  seat  in  that 
body.  In  the  course  of  one  of  the  debates,  he  said  of  the 
statute  which  had  called  the  convention  into  being  that  it  was 
law  because  it  had  been  sanctioned  by  the  votes  of  the  people.4 

The  Massachusetts  and  the  Rhode  Island  courts  were  perhaps 
right  in  saying  that  the  existence  of  one  express  method  for 
amending  the  constitution,  impliedly  prohibits  the  use  of  any 
other  method  of  amendment;  but  the  Rhode  Island  Court 
stands  alone  in  drawing  from  this  the  conclusion  that  popular 
conventions  are,  therefore,  invalid.    The  trouble  with  the  Rhode 

1  Arthur  Lord,  in  II  "Mass.  Law  Quarterly,"  1,  24  (1916). 

2  Holcombe,  "  State  Government, "  p.  95. 

3  The  Rhode  Island  court,  even,  has  recognized  the  right  to  hold  unauthor- 
ized conventions  "ex  necessitate."  Opinion  of  Justices  (1883),  14  R.  I.  649, 
653. 

4  Deb.  Mass.  Conv.  of  1853,  Vol.  I,  p.  76. 


48  CONSTITUTIONAL  CONVENTIONS 

Island  Court  was  that  it  could  not  conceive  of  anything  not  con- 
stitutional being  valid.1 

If  the  express  authorization  of  the  legislative  method  of  amend- 
ment impliedly  prohibits  the  convention  method,  a  fortiori  would 
the  express  authorization  of  the  convention  method  impliedly  pro- 
hibit the  holding  of  a  convention  in  ways  not  provided  for.  Yet 
conventions  have  been  successfully  held  in  Georgia  in  1788,  in 
Indiana  in  1850,  in  Delaware  in  1852,  in  Florida  in  1865,  and  in 
Pennsylvania  in  1789,  in  direct  violation  of  such  provisions.2 

The  Supreme  Court  of  Indiana  has  recently  asserted  the  legal- 
ity of  such  conventions: 

It  may  be  answered,  that  the  General  Assembly,  in  the  action 
taken  in  those  years,  made  no  attempt  to  assume  the  power,  under 
the  general  grant  of  authority  to  legislate,  to  formulate  a  new  Con- 
stitution, or  to  revise  the  existing  one.  It  merely  asked  the  people 
to  express  their  will  in  relation  to  calling  a  convention  to  revise 
or  amend  the  Constitution,  to  be  expressed  through  the  ballot,  and 
when  it  was  expressed  it  was  a  warrant  and  a  command  which  the 
legislative  agency  carried  out  as  given.  Under  such  circumstances, 
the  calling  of  a  convention,  as  Jameson  in  his  work  shows,  is  in 
accordance  with  sound  political  principles,  and  a  well-recognized 
and  established  practice.  The  rule  thus  established  in  American 
constitutional  law  by  the  evolution  of  the  constitutional  convention 
from  the  two  revolutionary  conventions  of  England  in  1666  [sic] 
and  1689,  he  shows  is  applicable  to  states  like  ours,  having  a  limited 
provision  for  amendment,  through  the  initiative  of  the  legislature, 
but  no  provision  for  a  convention  for  a  general  revision.3 

Compare: 

The  decided  weight  of  authority  and  the  more  numerous  prece- 
dents are  arrayed  on  the  side  of  the  doctrine  which  supports  the 
existence  of  this  inherent  legislative  power  to  call  a  constitutional 
convention,  notwithstanding  the  fact  that  the  instrument  itself 
points  out  how  it  may  be  amended.4 

Not  only  have  conventions  been  successfully  held  without 
question  in  States  whose  constitutions  either  are  entirely  silent 

1  On  extraconstitutional  validity,  see  p.  26,  supra. 

2  For  descriptions  of  these  conventions,  see  pp.  51-52,  infra. 

3  Ellingham  v.  Dye  (1912),  178  Ind.  336,  377-378. 

4  State  v.  DaM  (1896),  6  N.  D.  81, 87.  Op.  Atty.  Gen.,  in  N.  D.  House  Jour- 
nal, Jan.  26, 1917. 


POPULAR  CONVENTIONS  ARE  LEGAL  49 

as  to  methods  of  amendment,  or  impliedly  prohibit  this  method 
by  naming  another;  but  they  have  been  even  held  in  States 
whose  constitutions  expressly  prohibit  them. 

In  Delaware,  where  the  constitution  of  1776  provided  that 
the  constitution  should  not  be  "  altered,  changed  or  diminished, 
without  the  consent  of  five  parts  in  seven  of  the  assembly, 
and  seven  members  of  the  legislative  council,"  the  legislature 
of  that  State  in  1791  called  a  constitutional  convention  in  spite 
of  the  provision  that  the  constitution  should  be  altered  in 
only  one  way.1 

So  also  the  Maryland  legislature  called  the  convention  of 
1850,  although  the  constitution  of  1776  specifically  provided 
that  the  constitution  should  be  altered  only  by  a  bill  passed 
by  two  successive  general  assemblies  of  that  State.2  The 
Georgia  constitution  of  1798  contained  a  provision  with 
respect  to  amendment  similar  to  that  in  the  Maryland  con- 
stitution of  1776,  but  in  this  State  also  conventions  were 
nevertheless  held,  namely,  in  the  years  1833  and  1839.3 

To  these  four  examples  of  the  legal  holding  of  a  constitutional 
convention,  although  expressly  prohibited  by  the  constitution, 
may  be  added  the  convention  which  framed  the  Constitution 
of  the  United  States,  as  this  convention  was  expressly  prohib- 
ited by  the  following  language  in  the  Articles  of  Confederation: 

The  articles  of  this  Union  shall  be  perpetual;  nor  shall  any 
alteration  at  any  time  hereafter  be  made  in  any  of  them;  unless 
such  alteration  be  agreed  to  in  a  Congress  of  the  United  States,  and 
be  afterwards  confirmed  by  the  Legislature  of  every  State.4 

TJie  Rhode  Island  Supreme  Court  said  in  the  already-cited 
opinion  that  "an  implied  is  as  effectual  as  an  express  pro- 
hibition.5 The  court  might  well  have  said:  "An  express 
prohibition  is  as  ineffectual  as  an  implied." 

These  five  examples  apparently  completely  dispose  of  Mr. 
AttwilPs  theory  that  popular  conventions  derive  their  validity 
through  being  expressly  authorized  by  the  constitution.  Would 
not  a  better  view  be  that  the  various  Bills  of  Rights  admit  the 
existence  of  a  higher  power  than  the  constitution,  to  wit,  the 

1  Jameson,  pp.  214-215.  2  Jameson,  pp.  215-216. 

3  Dodd,  p.  44,  n.  28.  4  Art.  XIII. 

5  Opinion  of  Justices  (1883),  14  R.  I.  649,  654. 


50  CONSTITUTIONAL  CONVENTIONS 

will  of  the  people;  rather  than  that  they  graciously  grant  to 
succeeding  generations  a  privilege  which  it  would  be  in  their 
power  to  withhold. 

The  Supreme  Court  of  Massachusetts  has  recently  refused 
to  pass  on  the  question  of  whether  popular  conventions  are 
legal,  and  if  so,  whether  they  are  held  under  the  constitution; 
saying  merely  that  if  they  are  held  under  the  constitution, 
such  and  such  is  the  law.    They  say: 

The  validity  and  the  powers  of  this  convention  are  not  neces- 
sarily involved  in  these  questions.  ...  If  the  convention  to  revise 
and  alter  the  Constitution  is  held  under  the  Constitution,  it  is 
because  the  people  of  the  Commonwealth  have  under  the  Con- 
stitution the  right  to  alter  their  frame  of  government  according  to 
orderly  methods  as  provided  by  law,  and  through  the  medium  of 
an  act  of  the  Legislature.1 

But  even  if  these  provisions  in  Bills  of  Rights  may  be  con- 
sidered as  expressly  granting  such  a  power  to  the  people,  they 
may  be  regarded  as  in  much  the  same  position  as  the  man  who 
was  trying  to  show  his  authority  over  his  dog  by  ordering  him 
to  sit  up  and  beg.  The  dog  refused  to  obey.  Finally  the  man, 
still  determined  to  show  his  authority,  cried  out:  "Well,  then, 
lie  down!  I  will  be  obeyed!"  If  the  constitution  really  does 
authorize  the  convention,  this  authorization  is  immaterial;  for 
the  constitution,  as  we  have  seen,  would  have  no  power  to  pro- 
hibit it. 

This  view  may  be  carried  still  further  to  apply  to  even  those 
constitutions  which  expressly  authorize  the  holding  of  a  con- 
vention. If  these  constitutions,  too,  would  have  no  power  to 
prohibit  the  convention,  their  authorization  of  it  is  at  the  most 
the  mere  providing  of  a  means  for  the  expression  of  a  superior 
popular  right.2  Most  of  the  constitutions  concede  the  right 
of  the  people  to  be  at  least  consulted  before  a  convention  is 
held. 

Thus  the  popular  nature  of  even  expressly  authorized  con- 
ventions is  now  generally  recognized  in  practice,  if  not  in  theory. 
That  the  constitution  is  merely  helping  out  a  superior  right, 
rather  than  granting  a  privilege  to  the  people,  is  shown  by  the 

1  1917  Mass.  Senate  Doc.,  512. 

2  A  similar  argument  was  successfully  used  in  a  contested  election  case  in  the 
Illinois  convention  of  1862.    See  p.  185,  infra. 


POPULAR  CONVENTIONS  ARE  LEGAL  51 

fact  that  the  people  may  accept  so  much  of  the  constitutional 
assistance  as  they  wish,  and  may  disregard  the  constitutional 
limitations.     Delaware  furnishes  us  an  example  of  this. 

The  Delaware  constitution  of  1831  provided  that  no  con- 
stitutional convention  should  be  called  except  by  authority 
of  the  people,  and  that  the  only  way  to  obtain  this  authority 
would  be  to  take  a  vote  on  the  third  Tuesday  of  May  of  any 
year  and  obtain  the  affirmative  vote  "of  a  majority  of  all  the 
citizens  of  the  state  having  a  right  to  vote  for  representatives." 
Acting  under  this  provision  of  the  constitution,  the  general 
assembly  in  1851  passed  an  act  to  take  the  vote  of  the  people. 
At  the  election  held  under  this  act  a  majority  of  the  votes  cast 
were  in  favor  of  a  convention,  but  the  number  was  not  sufficient 
to  constitute  a  majority  of  all  citizens  who  had  a  right  to  vote 
for  representatives.  Nevertheless  the  legislature  declared  that 
the  question  had  carried  and  passed  another  act  calling  a 
convention.1 

If  the  constitution  of  Delaware  could  effectively  limit  the 
right  of  the  people  to  call  a  convention,  then  this  convention 
was  illegal  and  void.  If,  on  the  other  hand,  the  people  can 
lawfully  disregard  the  constitution  even  in  cases  where  the 
constitution  provides  for  a  convention,  then  this  convention 
was  valid.  The  question  arose  in  the  convention  itself,  and  the 
majority  opinion  of  the  delegates  was  that  the  clause  of  the 
constitution  was  merely  recommendatory,  not  peremptory.2 

Similarly  with  respect  to  the  Indiana  convention  of  1850. 
The  Indiana  constitution  in  1816,  then  in  force,  authorized 
the  calling  of  a  convention  every  twelfth  year,  but  a  convention 
was  held  within  one  of  the  twelve-year  periods,  and  was  never 
questioned.3 

The  Pennsylvania  convention  of  1789  also  belongs  in  this 
class.  The  constitution  then  in  force  in  that  State  provided 
that  it  should  be  amended  only  in  a  manner  therein  directed, 
namely,  by  a  convention  called  by  the  council  of  censors.  An 
attempt  was  twice  made  to  obtain  a  majority  of  the  censors 
in  favor  of  calling  a  convention,  but  both  attempts  failed. 
Finally,  just  prior  to  the  sitting  of  the  next  council,  the  gen- 
eral assembly  took  the  matter  into  its  own  hands  by  obtaining 

1  Jameson,  p.  209,  n.  1.  2  Jameson,  p.  209,  n.  1. 

*  Jameson,  p.  210,  n.  1. 


52  CONSTITUTIONAL  CONVENTIONS 

a  popular  expression  of  opinion  on  the  expediency  of  holding 
a  convention.  This  was  done  by  an  informal  canvass  during 
a  recess  of  the  legislature.  The  result  satisfied  the  members 
that  the  people  wished  a  convention,  and  one  was  accordingly 
called,  which  framed  and  established  the  constitution  of  1790.1 

Similarly  with  respect  to  the  series  of  Georgia  conventions  in 
1788-1789.  The  constitution  of  1777,  then  in  force,  authorized 
a  convention  upon  the  petition  of  a  majority  of  the  voters  of 
a  majority  of  the  counties.  The  legislature  disregarded  this 
provision  and  appointed  a  convention  in  1788  to  draft  a  new 
constitution.  The  people  elected  delegates  to  a  convention  in 
the  fall  of  that  year  which  modified  the  constitution  drafted 
by  the  first  convention  and  submitted  it  to  a  third  convention 
elected  by  the  people  in  1789.2  Yet  Jameson  refers  to  the 
"regularity"  of  this  procedure.3 

Similarly  with  respect  to  the  Florida  convention  of  1865. 
The  constitution  of  1838  of  that  State  provided  that  "no  con- 
vention of  the  people  shall  be  called,  unless  by  the  concurrence 
of  two  thirds  of  each  House  of  the  General  Assembly."  Yet 
the  Florida  constitution  of  1865  was  drawn  by  a  convention 
called  by  the  Governor,  and  was  sustained  by  the  Supreme  Court 
of  the  State.4 

These  five  examples  would  seem  to  establish  the  principle 
that  conventions,  even  when  expressly  authorized  by  the  con- 
stitution, are  nevertheless  popular  in  their  nature,  and  have 
pretty  much  the  same  standing  as  though  the  constitution  had 
been  silent  on  the  subject.  In  other  words,  constitutional 
provisions  permitting  the  holding  of  conventions  are,  like 
legislative  acts  on  the  subject,  merely  recommendatory  to  the 
people. 

Thus  we  come  back  to  the  fact  that  all  conventions  are  valid 
if  called  by  the  people  speaking  through  the  electorate  at  a 
regular  election.  This  is  true,  regardless  of  whether  the  con- 
stitution attempts  to  prohibit  or  to  authorize  them,  or  is  merely 
silent  on  the  subject.  Their  validity  rests  not  upon  constitu- 
tional provision  nor  upon  legislative  act,  but  upon  the  funda- 
mental sovereignty  of  the  people  themselves. 

1  Jameson,  pp.  213-214.  *  Dodd,  p.  42. 

3  Jameson,  p.  135. 

*  Bradford  v.  Shine  (1871),  13  Fla.  393,  415. 


POPULAR  CONVENTIONS  ARE  LEGAL  53 

Judge  Jameson  makes  an  interesting  attempt  to  reconcile 
his  theory  of  legislative  supremacy  with  the  fundamental 
principles  from  which  he,  as  an  able  jurist,  is  unable  to  escape. 
It  may  prove  instructive  to  analyze  his  views  on  this  point. 

He  says  as  follows: 

Revolution  can  never  be  resorted  to  under  the  Federal  Con- 
stitution, or  under  any  other  Constitution,  legally;  but,  when  the 
evils  under  which  a  commonwealth  languishes,  become  so  great  as 
to  make  revolution,  including  insurrection  and  rebellion,  less  in- 
tolerable than  an  endurance  of  those  evils,  it  will  be  justifiable, 
although  the  Federal  relations  of  that  commonwealth  may  be  such 
as  to  array  against  her  forces  vastly  greater  than  they  would  be 
were  she  and  the  other  States  independent  and  isolated  com- 
munities. The  right  of  revolution  stands  not  upon  the  letter  of 
any  law,  but  upon  the  necessity  of  self-preservation,  and  is  just  as 
perfect  in  the  single  man,  or  in  the  petty  State,  as  in  the  most 
numerous  and  powerful  empire  in  the  world.  This  right,  the 
founders  of  our  system  were  careful  to  preserve,  not  as  a  right 
under,  but,  when  necessity  demanded  its  exercise,  over  our  Con- 
stitutions, State  and  Federal. 

Thus,  the  Declaration  of  Independence  affirms,  "that  whenever 
any  form  of  government  becomes  destructive  "  of  the  ends  of  govern- 
ment, "it  is  the  right  of  the  people  to  alter  or  abolish  it,  and  to 
institute  a  new  government,  laying  its  foundation  on  such  principles, 
and  organizing  its  powers  in  such  form  as  to  them  shall  seem  most 
likely  to  effect  their  safety  and  happiness." 

Not  only  so,  but  it  classes  this  affirmation  among  the" self-evident 
truths:  "We  hold  these  truths  to  be  self-evident." 

Now,  no  truth  can  be  self-evident,  which  becomes  evident  only 
under  particular  conditions,  as  when  it  is  deducible  only  from  the 
construction  of  legal  instruments,  or  from  the  provisions  of  some 
positive  code.  It  must  be  a  truth  independently  of  such  conditions, 
as  would  be  indispensable  to  give  it  rank  as  a  legal  truth.  If  the 
truth  in  question  is  a  self-evident  truth,  it  is  one  which  would 
obtain  equally  whether  asserted  in  the  Constitution  and  laws  or  not. 

The  second  class  of  documents  consists  in  the  Bills  of  Rights  of  a 
large  number  of  our  Constitutions,  containing  broad  general  asser- 
tions of  the  right  of  a  people  to  alter  or  abolish  their  form  of  govern- 
ment, at  any  time,  and  in  such  manner  as  they  may  deem  expedient. 
The  peculiarity  of  these  documents  is,  that  they  seem  to  assert 


54  CONSTITUTIONAL  CONVENTIONS 

the  right  in  question  as  a  legal  right;  at  least,  they  furnish  a 
plausible  argument  for  those  who  are  willing  to  have  it  believed  that 
the  right  is  a  legal  one;  when,  in  fact,  it  is  a  revolutionary  right. 
The  framers  of  those  Constitutions  generally  inserted  in  them 
provisions  for  their  own  amendment.  Had  nothing  further  been 
said,  it  might  have  been  inferred,  that  no  other  mode  of  securing 
needed  changes  was  under  any  circumstances  to  be  pursued,  but 
that  prescribed  in  those  instruments.  Such,  however,  was  not  the 
intention  of  their  framers.  They  meant  to  leave  to  the  people, 
besides,  the  great  right  of  revolution,  formally  and  solemnly  as- 
serted in  the  Declaration  of  Independence.  They,  therefore, 
affirmed  it  to  be  a  right  of  the  people  to  alter  or  abolish  their 
Constitutions,  in  any  manner  whatever;  that  is,  first,  legally,  in 
the  mode  pointed  out  in  their  Constitutions,  or  by  the  customary 
law  of  the  land;  and  secondly,  illegally,  that  is,  for  sufficient  causes, 
by  revolutionary  force.1 

Judge  Jameson  lays  down  these  fundamental  principles 
absolutely  correctly.  He  recognizes  that  a  change  of  govern- 
ment under  the  fundamental  right  of  the  people  is  a  right  over 
our  constitutions  rather  than  a  right  under  them.  In  other 
words,  it  is  an  extraconstitutional  or  supraconstitutional  right, 
rather  than  a  constitutional  right.  He  recognizes  that  the 
self-evident  truths  laid  down  by  the  Declaration  of  Independ- 
ence and  the  Bills  of  Rights  would  obtain  equally,  whether 
asserted  in  the  constitution  or  not.  In  other  words,  con- 
stitutions do  not  guarantee  these  rights;  they  merely  admit 
them. 

Where  he  errs  is  when  he  tries  to  apply  these  principles  to  his 
preconceived  theory.  He  divides  conventions  into  merely  two 
classes,  i.  e.  legal  and  revolutionary.  This  classification  would 
fit  very  nicely  were  it  not  for  the  existence  of  the  four  cases 
already  referred  to,  in  which  conventions  were  held  in  the  very 
teeth  of  prohibitory  provisions  in  the  existing  constitutions. 
Jameson  himself  refers  to  three  of  these  conventions,  and  admits 
that  they  were  wholly  illegitimate  in  their  origin.  He  goes  on  to 
say: 

It  is  obvious,  that  to  justify  such  proceedings,  on  legal  grounds, 
would  be  to  take  away  from  the  fundamental  law  that  character- 
istic quality  by  which  it  is  the  law  of  laws  —  the  supreme  law  of 

1  Jameson,  pp.  235-236. 


POPULAR  CONVENTIONS  ARE  LEGAL  55 

the  land.  If  it  be  not  the  supreme  law,  for  all  the  purposes  of  a 
Constitution,  in  the  American  sense,  it  might  as  well  be  a  piece 
of  blank  paper.  ... 

There  is  in  my  judgment,  no  way  in  which  the  action  of  those 
bodies,  in  those  cases,  can  be  justified,  except  by  affirming  the  legal 
right  of  the  inhabitants  of  a  given  territory,  organized  as  a  body 
politic,  to  meet  at  will,  as  individuals,  without  the  authority  of 
law,  and,  on  their  own  claim  that  they  are  the  people  of  the  State, 
to  dictate  to  the  government  such  changes  in  its  laws,  Constitution, 
or  policy,  as  they  may  deem  desirable.1 

Thus  Jameson  has  to  classify  these  conventions  as  merely 
spontaneous,  although  forced  to  admit  at  least  their  de  facto 
validity.  Is  it  not  simpler  to  classify  these  conventions,  together 
with  conventions  held  in  the  absence  of  any  mention  in  the 
constitutions,  as  in  a  class  standing  halfway  between  con- 
stitutional cases  and  cases  in  which  the  convention  requires 
armed  force  for  its  assistance?  In  other  words,  the  following 
out  of  the  fundamental  principles,  as  laid  down  by  Jameson 
himself,  forces  us  to  the  classification  adopted  at  the  opening 
of  Chapter  III,  namely,  authorized  conventions,  popular  con- 
ventions, and  spontaneous  conventions. 

Judge  Walker,  in  the  latest  edition  of  his  monumental  work 
on  American  law,  has  this  to  say  relative  to  popular  sovereignty: 

This  indeed  is  self-evident,  since  all  power  comes  from  the 
people.  They  have  created  the  government,  and  may  destroy  it, 
when  it  ceases  to  satisfy  them.  Delegated  power,  as  above  stated, 
is  not  irrevocable.  .  .  .  But  it  is  needless  to  enlarge  upon  the 
general  right  of  revolution.  It  must  of  necessity  exist,  whenever 
a  majority  desire  it,  even  though  the  existing  government  should 
be  in  terms  made  perpetual,  as  some  of  the  provisions  in  our  con- 
stitutions are  declared  to  be.2 

Judge  Jameson's  description  of  legitimate  revolution,  quoted 
a  little  way  back,3  fits  exactly  the  great  class  of  conventions 
which  the  present  author  has  denominated  "popular/'  and 
which  Jameson  himself  admits  are  not  authorized  by  any  con- 
stitution. Following  his  definition,  we  may  assume  that  popular 
conventions  are  extra-  or  supra-constitutional. 


1  Jameson,  p.  217. 

2  Walker,  American  Law  (11  ed.),  p.  231. 

3  Jameson,  p.  235.    See  pp.  53-54,  supra. 


56  CONSTITUTIONAL  CONVENTIONS 

As  he  himself  punningly  puts  it,  the  right  of  the  people  to 
change  their  government  is  not  a  right  under  the  constitution, 
but  is  rather  a  right  over  the  constitution.1 

Or  to  quote  from  the  Supreme  Court  of  Virginia  in  an  early 
decision: 

The  convention  of  Virginia  had  not  the  shadow  of  a  legal,  or 
constitutional  form  about  it.  It  derived  its  existence  and  authority 
from  a  higher  source;  a  power  which  can  supersede  all  law,  and 
annul  the  constitution  itself — namely,  the  people,  in  their  sovereign, 
unlimited,  and  unlimitable  authority  and  capacity.2 

Or  from  the  Supreme  Court  of  New  York: 

Neither  the  calling  of  a  convention,  nor  the  convention  itself 
is  a  proceeding  under  the  constitution.  It  is  over  and  beyond 
the  constitution.3 

It  is  true,  however,  that  the  Rhode  Island  Supreme  Court 
and  Dodd  can  be  cited  in  opposition  to  this  idea  of  a  sanction 
above  and  superior  to  the  constitution. 

Dodd  says  that  the  convention  is  in  no  sense  an  extraconsti- 
tutional  body.4  But  that  statement  may  very  well  be  true 
with  respect  to  conventions  in  his  State,  Maryland,  [where 
the  constitution  expressly  authorizes  them;  without,  however, 
being  at  all  true  with  respect  to  popular  conventions. 

The  Rhode  Island  Court  says: 

Finally,  it  has  been  contended  that  there  is  a  great  unwritten 
common  law  of  the  states,  which  existed  before  the  Constitution, 
and  which  the  Constitution  was  powerless  to  modify  or  abolish, 
under  which  the  people  have  the  right,  whenever  invited  by  the 
General  Assembly,  and  as  some  maintain,  without  any  invitation, 
to  alter  and  amend  their  constitutions.  If  there  be  any  such  law, 
for  there  is  no  record  of  it,  or  of  any  legislation  or  custom  in  this 
State  recognizing  it,  then  it  is,  in  our  opinion,  rather  a  law,  if  law 
it  can  be  called,  of  revolutionary  than  of  constitutional  change. 
Our  Constitution  is,  as  already  stated,  by  its  own  terms,  the  supreme 
law  of  the  State.  We  know  of  no  law,  except  the  Constitution 
and  laws  of  the  United  States,  which  is  paramount  to  it.5 

1  Jameson,  p.  235. 

2  Kamper  v.  Hawkins  (1793),  3  Va.  20,  74. 
1  Journal,  69th  N.  Y.  Assembly,  p.  919. 

*  Dodd,  p.  72. 

6  Opinion  of  Justices  (1883),  14  R.  I.  649,  654. 


POPULAR  CONVENTIONS  ARE  LEGAL  57 

But  we  must  take  into  consideration  the  fact  that  the  court 
were  undoubtedly  influenced  by  a  recollection  of  Dorr's  Re- 
bellion, and  so  denied  not  only  the  existence  of  any  such  thing 
as  extraconstitutional  law,  but  also  the  validity  of  the  popular 
convention,  which  even  Dodd  admits. 

This  is  also  admitted  by  the  Declaration  of  Independence  and 
practically  all  of  the  various  American  Bills  of  Rights.1 

Thus  we  may  conclude  that  although  popular  conventions 
are  not  constitutional,  it  does  not  necessarily  follow  from  this 
that  they  are  void,  although  the  Rhode  Island  Supreme  Court  so 
contends.2  They  are  really  authorized  by  a  power  above  the 
constitution,  to  wit,  the  sovereignty  of  the  people,  and  hence 
are  supraconstitutional  and  perfectly  valid.3 

1  See  pp.  12-14,  supra. 

2  Opinion  of  Justices  (1883),  14  R.  I.  649. 

3  Frank  W.  Grinnell,  one  of  the  ablest  of  the  ultra-conservative  members  of 
the  Massachusetts  bar,  has  an  article  in  No.  4  of  Vol.  II  of  the  "Massachusetts 
Law  Quarterly"  (pp.  274-280)  (appearing  too  late  to  quote  in  this  book),  in 
which  article  he  too  asserts  the  extraconstitutionality  of  conventions  which  are 
not  expressly  mentioned  in  the  constitution.  On  the  general  subject  of  this 
chapter,  see  particularly  "  Methods  of  Changing  the  Constitutions  of  the  States, 
Especially  that  of  Rhode  Island,"  by  Charles  S.  Bradley,  ex-Chief  Justice  of 
the  Supreme  Court  of  Rhode  Island.    Boston,  1885. 


Chapter  V 
WHO  CALLS  THE  CONVENTION? 

Whether  the  legislature  has  the  power  to  amend  the  act 
by  which  a  convention  is  called  is  an  important  question  to  be 
treated  later  in  this  book.  It  depends  in  part  upon  a  considera- 
tion of  whether  it  is  the  legislature  or  the  people  who  originally 
enacted  that  act.  In  fact,  the  whole  matter  of  the  status  of  the 
convention  and  of  its  members  depends  to  some  extent  upon 
a  solution  of  this  problem,  to  which  this  chapter  will  accordingly 
be  devoted. 

First  let  us  eliminate  certain  types  of  convention  to  which 
this  discussion  does  not  properly  relate.  Since  the  introduction 
of  the  initiative  and  referendum  in  the  West  and  Middle 
West,  not  only  may  constitutional  amendments  be  made  in 
twelve  States  by  an  initiative  petition  without  the  interposi- 
tion of  either  the  legislature  or  a  convention;1  but  also  in  six 
additional  States,  the  people  can  initiate  and  adopt  a  measure 
providing  for  the  holding  of  a  convention;  and  may,  by  referen- 
dum, veto  any  statutes  by  which  the  legislature  attempts  to 
interfere  with  a  convention.2  In  all  of  these  States  except  Ar- 
kansas, Maine,  and  North  Dakota,  the  constitutions  provide  that 
legislative  acts  for  the  calling  of  a  convention  must  be  referred 
to  the  people; 3  and  in  these  three  under  the  referendum,  the 
people  can  compel  the  reference  of  this  question  to  them.  Thus 
in  these  States  the  convention  is  entirely,  absolutely,  and  un- 
questionably within  the  control  of  the  people,  and  hence  owes 
nothing  of  its  authority  to  the  legislature. 

So,  too,  if  we  adopt  the  theory  that  conventions  which  are 

1  These  States  are  Arizona,  Arkansas,  California,  Colorado,  Michigan,  Mis- 
souri, Nebraska,  Nevada,  North  Dakota,  Ohio,  Oklahoma,  and  Oregon.  "  Co- 
lumbia Digest,"  p.  771. 

2  These  States  are  Idaho,  Maine,  Montana,  South  Dakota,  Utah,  and 
Washington.    "Columbia  Digest,"  p.  771. 

»  "Columbia  Digest,"  p.  21. 


WHO   CALLS  THE  CONVENTION?  59 

expressly  authorized  by  the  constitution  derive  their  authority 
from  that  document  rather  than  from  the  people,  we  may  dis- 
regard such  cases  for  the  purposes  of  this  discussion. 

Most  of  the  constitutions  which  contain  provisions  for  the 
calling  of  conventions  now  provide  that  they  be  called  after 
the  legislature  has  submitted  the  question  of  a  convention  to  the 
people  and  has  obtained  their  approval,  such  a  popular  vote  to 
be  taken  whenever  the  legislatures  themselves  may  think  proper. 
The  first  provisions  of  this  character  were  those  contained  in 
the  Delaware  constitution  of  1792,1  the  Tennessee  constitution 
of  1796,2  the  Kentucky  constitution  of  1799,3  and  the  Ohio 
constitution  of  1802.4  The  Kentucky  provision  of  1799,  which 
was  substantially  repeated  in  the  constitution  of  1850,  threw 
great  obstacles  in  the  way  of  calling  a  convention,  by  requiring 
two  successive  popular  votes;  but  this  plan  was  not  followed  by 
other  States  except  in  the  one  case  of  the  Louisiana  constitution 
of  1812.5  The  Kentucky  constitution  of  1891  discarded  the 
requirement,  but  does  require  the  vote  of  two  successive  gen- 
eral assemblies  to  propose  the  question  to  the  people.6  The 
plan  of  permitting  the  legislature  at  its  discretion  to  submit  to 
the  people  the  question  of  calling  a  constitutional  convention, 
has  for  many  years  been  the  most  popular  one,  and  is  now 
in  force  by  the  constitutions  of  twenty-five  States.7 

Some  States  do  not  even  leave  it  to  the  discretion  of  the  legis- 
lature as  to  when  the  people  shall  vote  on  the  question  of  calling 
a  convention,  but  specifically  provide  by  their  constitutions 
that  popular  votes  shall  be  taken  at  definite  intervals.  There 
are  now  six  States  which  require  the  periodical  submission  of 
this  question.8  The  constitutions  of  four  of  these  permit  the 
legislature  to  submit  the  question  to  the  people  at  other  than 
the  regular  periodical  times.9 

1  Thorpe,  Vol.  1,  p.  580.  2  Thorpe,  Vol.  6,  p.  3421. 

3  Thorpe,  Vol.  3,  p.  1288.  4  Thorpe,  Vol.  5,  p.  2908. 

6  Thorpe,  Vol.  5,  p.  1390.  6  Thorpe,  Vol.  5,  p.  1355. 

7  These  States  are  Alabama,  California,  Colorado,  Delaware,  Florida,  Idaho, 
Illinois,  Kansas,  Kentucky,  Minnesota,  Missouri,  Montana,  Nebraska,  Nevada, 
North  Carolina,  Oregon,  South  Carolina,  South  Dakota,  Tennessee,  Utah,  Vir- 
ginia, Washington,  West  Virginia,  Wisconsin,  and  Wyoming.  "Columbia 
Digest,"  pp.  22-23. 

8  These  States  are:  Maryland,  New  Hampshire,  Iowa,  Michigan,  New  York, 
and  Ohio.    "Columbia  Digest,"  p.  22. 

9  Iowa,  Michigan,  New  York,  and  Ohio.    "Columbia  Digest,"  p.  22. 


60  CONSTITUTIONAL  CONVENTIONS 

The  Oklahoma  constitution  requires  the  legislature  to  sub- 
mit the  question  at  least  once  in  every  twenty  years,  leaving  the 
particular  time  to  the  legislature's  discretion.1 

Thus  the  practice  of  obtaining  the  popular  approval  for  the 
calling  of  a  convention  may  be  said  to  have  become  almost 
the  settled  rule.  Thirty-two  State  constitutions  require  such  a 
popular  expression  of  approval,  and  even  where  it  has  not  been 
expressly  required,  such  a  popular  vote  has  been  taken  in  a 
majority  of  cases  in  recent  years.2 

Maine  and  Georgia  are  the  only  States  whose  constitutions 
now  provide  for  the  holding  of  a  constitutional  convention, 
without  also  containing  a  provision  for  first  obtaining  the  ap- 
proval of  the  people.3 

In  the  case  of  these  States  it  may  be  argued  that  the  conven- 
tion derives  its  authority  from  the  legislature  alone;  although 
in  the  case  of  Maine  it  may  well  be  argued  that  the  convention 
derives  its  authority  from  popular  acquiescence,  as  manifested 
in  the  failure  of  the  people  to  circulate  a  referendum  petition; 
and  in  both  cases  it  might  possibly  be  argued  (on  the  analogy 
of  the  Pennsylvania  decision  to  be  discussed  a  little  later  in  this 
chapter)  that  the  people  ratify  the  legislative  statute  by  par- 
ticipating in  the  election  of  delegates  under  it. 

In  the  case  of  the  thirty-two  State  constitutions  which  require 
a  popular  vote  in  advance  of  calling  the  convention,  it  may  be 
contended  that  the  people  call  the  convention  under  a  permission 
graciously  conferred  on  them  by  the  constitution,  but  the  Dela- 
ware, Indiana,  Pennsylvania,  Georgia,  and  Florida  cases  discussed 
in  the  last  chapter,4  in  which  cases  valid  conventions  were  held  in 
open  disregard  of  constitutional  provisions  relative  to  the  manner 
of  holding  conventions,  lend  weight  to  the  theory  that  a  con- 
vention authorized  by  the  constitution  stands  upon  no  different 
footing  with  respect  to  the  source  of  its  authority,  than  a  con- 
vention which  is  not  so  authorized,  or  than  one  which  is  even 
prohibited. 

As  we  saw,  when  discussing  fundamental  principles  in  Chapter 
II,  if  conventions  are  beyond  the  jurisdiction  of  the  constitu- 
tion, it  matters  not  whether  the  constitution  attempts  to  pro- 


1  "Columbia  Digest,"  p.  22.  2  See  infra,  p.  66. 

8  "Columbia  Digest,"  p.  21.  *  Supra,  pp.  51-52. 


WHO  CALLS  THE  CONVENTION?  61 

hibit  or  to  authorize  them,  or  is  silent  on  the  subject;  all  such 
conventions  are  supraconstitutional.1 

Nevertheless,  the  New  Hampshire  Supreme  Court  has  said 
that  where  a  convention  is  authorized  by  the  constitution,  it 
becomes  an  ordinary  legislative  matter  to  call  the  convention 
and  arrange  the  details.2  The  question  of  who  calls  the  conven- 
tion was  not,  however,  before  the  court. 

This  brings  us  to  that  class  of  conventions,  the  discussion  of 
which  is  the  chief  object  of  this  book,  namely,  conventions 
held  under  the  authority  of  supraconstitutional  fundamental 
law. 

When  the  legislators,  acting  as  the  representatives  of  the 
people,  call  such  a  convention  without  first  submitting  the  ques- 
tion to  their  constituents,  it  is  clear  that  in  the  absence  of  any 
other  controlling  circumstance,  the  convention  owes  its  existence 
to  the  legislature.  But  there  is  some  doubt  as  to  whether  the 
legislature  can  legally  call  a  convention  without  obtaining  the 
popular  permission.3 

When  the  legislature  submits  to  the  people  the  question 
of  holding  a  convention,  there  is  much  disputed  authority  and 
precedent  as  to  whether  the  convention  act  is  enacted  in  whole, 
in  part,  or  at  all,  by  the  people.  There  are  two  classes  of  cases 
for  us  to  consider:  (1)  those  in  which  the  convention  act  is 
passed  prior  to  the  submission  of  the  question  to  the  people,  and 
(2)  those  in  which  the  people  first  express  their  opinion  and  then 
the  legislature  calls  the  convention.  Let  us  first  consider  the 
former  class  of  cases. 

This  question  is  to  some  extent  wrapped  up  in  the  question  of 
the  power  of  the  legislature  to  amend  the  convention  act,  to  be 
discussed  in  a  later  chapter,4  and  the  two  questions  have  been 
more  or  less  confused  by  the  courts  and  textbook  writers. 
The  author  will  endeavor,  however,  to  disentangle  them. 

We  saw,  in  the  preceding  chapter,  that  Jameson  justified 
the  legality  of  popular  conventions  on  the  ground  that  "the 
calling  of  one  is,  in  my  judgment,  directly  within  the  scope  of 
the  ordinary  legislative  power." 5 

1  Supra,  p.  26. 

2  Opinion  of  Justices  (1911),  76  N.  H.  586,  587. 

3  See  pp.  66-68,  infra. 

4  See  Chapter  VIII,  infra. 

6  Supra,  p.  40.     Jameson,  p.  211. 


62  CONSTITUTIONAL  CONVENTIONS 

And  Dodd  follows  him  with,  "The  enactment  of  such  a  law 
...  is  considered  a  regular  exercise  of  legislative  power."  *  Dodd 
has  somewhat  modified  his  views  since  he  wrote  the  last  quota- 
tion, as  is  shown  by  the  fact  that  in  a  more  recent  article  of  his 
he  omits  to  make  any  such  statement.2  Jamesons  idea  raises 
at  once  the  question  as  to  whether  the  calling  of  a  convention  is 
within  the  powers  of  a  legislature  at  all;  for  if  not,  that  settles 
the  question  of  the  authorship  of  the  convention  act.  This  is 
exactly  the  line  of  reasoning  pursued  by  the  New  York  Supreme 
Court,  which  said: 

The  legislature  is  not  supreme.  It  is  only  one  of  the  instruments 
of  that  absolute  sovereignty  which  resides  in  the  whole  body  of  the 
people.  Like  other  departments  of  the  government,  it  acts  under  a 
delegation  of  powers;  and  cannot  rightfully  go  beyond  the  limits 
which  have  been  assigned  to  it.  This  delegation  of  powers  has  been 
made  by  a  fundamental  law,  which  no  one  department  of  the  govern- 
ment, nor  all  the  departments  united,  have  authority  to  change. 
That  can  only  be  done  by  the  people  themselves.  A  power  has 
been  given  to  the  legislature  to  propose  amendments  to  the  Con- 
stitution, which,  when  approved  and  ratified  by  the  people,  become 
a  part  of  the  fundamental  law.  But  no  power  has  been  delegated 
to  the  legislature  to  call  a  convention  to  revise  the  Constitution. 
That  is  a  measure  which  must  come  from,  and  be  the  act  of  the 
people  themselves.3 

Compare  Thompson,  speaking  in  the  Virginia  convention  of 
1829: 

No  one  ever  supposed  that  the  Acts  to  take  the  sense  of  the 
people,  and  to  organize  a  Convention,  were  Acts  of  ordinary  legis- 
lation; or,  properly  speaking,  Acts  of  legislation  at  all,  as  little  so 
as  an  election  by  that  body  of  any  officer.  .  .  .  The  truth  is,  the 
action  of  the  ordinary  legislature  on  this  subject  ...  is  not  of  the 
character  of  ordinary  legislation.  It  is  in  the  nature  of  a  resolve 
or  ordinance  adopted  by  the  agents  of  the  people,  not  in  their 
legislative  character,  for  the  purpose  of  collecting  and  ascertain- 
ing the  public  will,  both  as  to  the  call  and  organization  of  a  Con- 
vention and  upon  the  ratification  or  rejection  of  the  work  of  a 
Convention. 

1  Dodd,  p.  44. 

2  I  "Cyc.  American  Government,"  427. 

3  Journal,  69th  N.  Y.  Assembly,  p.  919.  This  opinion  was  approved  in  full 
by  a  committee  headed  by  Elihu  Root,  in  a  report  to  the  New  York  Convention 
of  1894.    Rev.  Record,  Vol.  I,  pp.  258-260,  270. 


WHO  CALLS  THE  CONVENTION?  63 

It  being  a  matter  of  interest  to  know  what  the  acts  were,  if 
not  acts  of  legislation,  the  speaker  thus  explained  his  views  on 
that  subject: 

The  Acts  spoken  of  were  called  for  by  their  constituents,  resulted 
from  the  necessity  of  the  case,  and  were  justified  by  that  supreme 
and  paramount  law,  the  salus  populi.  In  short,  they  supplied 
the  only  mode  by  which  the  original  right  of  the  people  to  meet  in 
full  and  free  Convention  to  reform,  alter,  or  abolish  their  form  of 
government,  could  be  exercised  without  jeopardizing  the  peace, 
tranquillity,  and  harmony  of  the  State.1 

And  compare  the  following  from  the  Supreme  Courts  of 
South  Carolina,  Michigan,  North  Dakota,  Massachusetts, 
and  Indiana  respectively: 

The  legislature  in  passing  the  act  for  calling  together  the  con- 
vention, were  not  acting  in  their  legislative  capacity.  The  act  has 
no  relation  to  the  general  powers  of  legislation.2 

Nowhere  in  article  4,  entitled  "Legislative  Department,"  is 
any  reference  made  expressly  or  impliedly  to  amendments  or  re- 
visions of  the  Constitution.  Only  by  section  2,  article  20,  has  the 
legislature  any  power  to  act  upon  a  revision  of  the  Constitution. 
The  power  there  conferred  is  ministerial  rather  than  legislative. 
But  the  name  is  immaterial.  It  does  not  require  the  approval  of 
the  governor  to  make  it  valid.  It  is  made  the  sole  agency  by  which 
the  people  may  determine  (1)  whether  they  desire  a  revision,  and 
(2)  if  they  decide  that  they  do,  to  provide  for  the  election  of 
delegates.3 

That  it  did  not  take  the  form  of  an  ordinary  law  is  too  clear  for 
controversy.  The  joint  resolution  has  no  title.  Its  enacting  clause 
is  not  couched  in  the  language  prescribed  by  the  constitution  to  be 
employed  in  the  enactment  of  ordinary  laws;  nor  was  it  ever  sub- 
mitted to  the  governor  for  approval.  Whenever  it  is  necessary 
that  the  expression  of  sovereign  will  should  take  the  form  of  ordi- 
nary legislation,  these  requirements  must  be  strictly  observed. 
But,  in  declaring  its  purpose  that  a  specific  proposition  should 
be  submitted  to  the  people  for  their  approval  or  disapproval,  the 
legislature  is  not  discharging  the  ordinary  function  of  enacting 
laws.4 

1  Jameson,,  pp.  579-580. 

2  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  271. 

3  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  341. 
«  State  v.  Dahl  (1896),  6  N.  D.  81,  82. 


64  CONSTITUTIONAL  CONVENTIONS 

The  Constitution  has  vested  no  authority  in  the  legislature  in 
its  ordinary  action  to  provide  by  law  for  submitting  to  the  people 
the  expediency  of  calling  a  Convention  of  delegates  for  the  purpose 
of  revising  or  altering  the  Constitution  of  the  Commonwealth.1 

In  assuming  to  legislate  in  relation  to  structural  changes  in 
the  government,  the  legislature  is  not  acting  within  the  power 
it  takes  under  the  general  grant  of  authority  to  enact,  alter  and 
repeal  laws  under  and  pursuant  to  the  Constitution.2 

Compare  Dodd:  "The  process  of  amendment  is  a  process  of 
superior  legislation."3 

Now,  if  a  convention  act  is  not  ordinary  legislation,  does  it 
not  therefore  verge  on  being  a  "fundamental  law"?  Jameson 
has  himself  pointed  out  that: 

Of  the  power  of  the  people  to  enact  fundamental  laws  there  is 
not  only  no  doubt,  but  it  is  clear  that  no  other  body  has  power  to 
enact  them,  except  by  express  warrant  for  the  particular  occasion.4 

And  compare  Braxton: 

The  People  alone  have  the  power  of  enacting  or  changing  the 
Fundamental  Law;  .  .  .  from  them  alone  does  the  Convention 
derive  its  powers  in  that  regard.5 

These  quotations  ought  to  be  sufficient  to  differentiate  the 
passage  of  ordinary  laws  from  the  passage  of  laws  which  verge 
on  the  fundamental. 

Another  point  which  bears  strongly  on  this  is  that  although 
the  legislature  of  Massachusetts,  prior  to  the  adoption  of  the 
XLII  Amendment,  could  not  lawfully  refer  to  a  popular  vote 
any  question  within  the  legislature's  own  legislative  powers,6 
yet  the  legislature  could  lawfully  refer  to  a  popular  vote,  a 
statute  calling  a  constitutional  convention,  thus  showing  that 
such  a  statute  is  not  within  the  legislative  powers  of  the  legis- 
lature, but  is  within  the  legislative  powers  of  the  electorate.7 

1  Opinion  of  Justices  (1833),  6  Cush.  573,  574-575. 
8  Ellingham  v.  Dye  (1912)/ 178  Ind.  336,  357. 
3  Dodd,  p.  232. 
*  Jameson,  p.  395,  n.  1. 

6  Braxton,  VII  "  Va.  Law  Reg.,"  100,  101. 

e  Opinion  of  Justices  (1894),  160  Mass.  586,  589.  See  also  Jameson,  pp. 
420-421,  and  n.  1. 

7  This  was  successfully  done  in  1819  and  1852. 


WHO   CALLS  THE  CONVENTION?  65 

A  still  further  consideration  is  as  follows:  If  it  be  the  legis- 
lature which  enacts  the  convention  act  and  thus  calls  the 
convention  into  being,  then  the  legislature  can  confer  on  another 
body  (i.  e.  the  convention)  a  power  (i.  e.  to  propose  a  con- 
stitution) which  the  legislature  itself  does  not  possess;1  which 
is  absurd.2 

The  most  recent  court  decision  on  the  subject  might  appear, 
from  the  following  language,  to  agree  with  Jameson's  original 
idea  that  a  convention  act  is  ordinary  legislation: 

In  the  absence  of  any  provision  in  the  Constitution  on  the  sub- 
ject it  seems  that  the  legislature  alone  can  give  validity  to  a  con- 
vention.   See  6  R.  C.  L.,  §  17,  p.  27.3 

But  when  we  look  up  the  court's  reference  to  R.  C.  L.,  a 
different  face  is  put  on  the  matter,  for  R.  C.  L.  says: 

In  the  absence  of  any  provision  in  the  constitution  on  the  sub- 
ject, it  seems  that  the  legislature  alone  can  give  legality  to  a  con- 
vention. Where  a  change  in  the  constitution  is  made  under  pro- 
ceedings initiated  by  the  legislature  it  is  not  because  the  legislature 
possesses  any  inherent  power  to  change  the  existing  constitution 
through  a  convention,  but  because  it  is  the  only  means  through 
which  an  authorized  consent  of  the  whole  people,  the  entire  state, 
can  be  lawfully  obtained.4 

And  later,  in  the  court  decision  itself,  it  is  held  that  the 
particular  convention  referred  to  was  the  creature  of  the 
people.5 

Thus,  regardless  of  whether  the  legislature  may  all  by  itself 
legally  call  a  convention,  it  is  clear  that  the  weight  of  authority 
is  against  the  view  that  the  calling  of  a  convention  is  among 
the  regular  legislative  powers. 

Judge  Cooley  does  not  ascribe  to  the  regular  legislative  pow- 
ers the  right  to  institute  convention  proceedings,  but  rather 
ascribes  this  right  to  the  fact  that  some  department  must  start 
the  ball  rolling  and  that  the  legislature  is  the  best  fitted  for  this, 
being  nearest  the  people.6 

1  See  p.  85,  infra. 

2  Senator  Niles,  in  Jameson,  p.  196. 

8  State  v.  American  Sugar  Co.  (1915),  137  La.  407,  413. 
«  6  R.  C.  L.,  §  17,  p.  27. 

6  State  v.  American  Sugar  Co.  (1915),  137  La.  407,  415. 
•  Cooley,  Const.  Lims.  (7  ed.),  pp.  56,  59-60. 


66  CONSTITUTIONAL  CONVENTIONS 

The  Massachusetts  Supreme  Court  in  its  recent  opinion  says 
that  if  the  convention  is  held  under  the  constitution  (which 
we  have  seen  it  is  not),  the  people  have  a  right  to  proceed 
through  the  medium  of  an  act  of  the  legislature.  But  they 
do  not  state  whether  or  not  this  act  becomes  the  act  of  the 
people.1 

It  is-  undoubted  that  conventions  have  in  the  past  been 
called  by  legislatures  without  advance  permission  from  the 
voters,  but  the  growing  tendency  has  been  to  first  take  a  popular 
vote.2 

Thus  Jameson,  although  he  is  the  chief  exponent  of  the 
doctrine  of  absolute  legislative  supremacy,  says: 

The  intervention  of  the  legislature  is  necessary  to  give  a  legal 
starting-point  to  a  Convention,  and  to  hedge  it  about  by  such  re- 
straints as  shall  ensure  obedience  to  the  law;  but  as  a  Convention 
ought  to  be  called  only  when  demanded  by  the  public  necessities, 
and  then  to  be  as  nearly  as  possible  the  act  of  the  sovereign  body 
itself,  it  would  seem  proper  to  leave  the  matter  to  the  decision  of 
the  electoral  body,  which  stands  nearest  to  the  sovereign,  and 
best  represents  its  opinion.  Such  seems  to  be  the  prevailing  senti- 
ment in  most  of  the  States.3 

And  in  New  York  in  1820  a  convention  act  was  vetoed  for 
the  following  reasons: 

It  is  worthy,  therefore,  of  great  consideration,  and  may  well  be 
doubted,  whether  it  belongs  to  the  ordinary  legislature,  chosen  only 
to  make  laws  in  pursuance  of  the  provisions  of  the  existing  Con- 
stitution, to  call  a  Convention  in  the  first  instance,  to  revise,  alter, 
and  perhaps  remodel  the  whole  fabric  of  the  government,  and 

1  1917  Mass.  Senate  Doc.  512. 

2  Dodd,  pp.  46-47,  and  n.  36;  Jameson,  p.  210,  and  n.  1.  Jameson's  note 
does  not  (differentiate  between  conventions  called  with,  and  those  called  with- 
out, popular  permission.  Dodd's  note  is  inaccurate.  Of  the  conventions  cited 
by  them,  the  author  has  only  been  able  to  find  that  the  following  were  called  by 
the  legislature  acting  alone:  New  York,  1801;  Connecticut,  1818;  Rhode  Island, 
1824,  1834,  1841  and  1842;  New  Jersey,  1844;  North  Carolina,  1876;  Louisiana, 
1879;  Mississippi,  1890;  and  a  majority  of  the  secession  and  reconstruction  con- 
ventions. The  New  York  convention  came  so  shortly  after  the  Revolution  as 
to  be  almost  a  War  convention.  Those  of  Connecticut  and  Rhode  Island  were 
called  by  charter  legislatures  with  unlimited  powers.  The  New  Jersey  consti- 
tution of  1776  was  amendable  by  the  legislature.  The  rest  of  the  conventions 
were  Southern,  doubtless  based  on  Civil  War  precedents. 

3  Jameson,  p.  111. 


WHO   CALLS  THE  CONVENTION?  67 

before  they  have  received  a  legitimate  and  full  expression  of  the 
will  of  the  people  that  such  changes  should  be  made.1 

Compare  the  following: 

That  in  the  opinion  of  this  Convention,  without  intending 
to  call  in  question  the  motives  of  the  members  of  the  Legis- 
lature, by  the  call  of  this  Convention,  the  Legislature,  at  its  late 
extraordinary  session,  was  unauthorized  by  the  people;  and  that 
said  act,  in  peremptorily  ordering  a  Convention  of  the  people  of 
the  State,  without  first  submitting  to  them  the  question  whether 
there  should  be  a  Convention  or  no  Convention,  was  an  un- 
warranted assumption  of  power  by  the  Legislature;  at  war  with 
the  spirit  of  republican  institutions,  an  encroachment  upon  the 
rights  of  the  people,  and  can  never  be  rightfully  invoked  as  a 
precedent.2 

.  .  .  the  agents  of  the  people,  who  have  not  been  selected  on  that 
particular  issue,  should  not  take  upon  themselves  the  responsibility 
of  burdening  the  people  with  the  expense  of  such  a  movement, 
without  first  submitting  to  them  the  question  of  whether  they  de- 
sire such  a  convention  to  be  called.  The  argument  against  the 
taking  of  the  initiative  by  the  legislature  in  such  cases,  without  first 
ascertaining  public  sentiment  on  the  question,  is  so  strong,  and 
lies  so  plainly  on  the  surface,  that  in  many  states  the  constitution, 
in  terms,  requires  the  submission  of  the  proposition  to  popular 
vote,  and  a  majority  vote  in  its  favor,  before  the  legislature  can 
legally  summon  the  people  to  meet  in  convention  to  revise  their 
organic  law.3 

The  coming  Indiana  convention  of  1918  sharply  diverges 
from  this  tendency,  for  the  legislature  passed  the  convention 
act,  not  only  without  popular  permission,  but  actually  in  the 
teeth  of  a  popular  refusal.4  The  legislature  of  1913  submitted 
to  the  electorate  the  question  of  calling  a  convention,  and  the 
electorate  overwhelmingly  voted  in  the  negative.  Neverthe- 
less, the  legislature  went  right  ahead,  just  as  though  they  had 
obtained  the  authority  from  a  favorable  vote,5  and  passed  the 
convention  act  of  1917.    But  the  courts  of  Indiana  are  prone 

1  Jameson,  p.  670. 

2  Journal,  Miss.  Conv.  1851,  pp.  48  and  50. 
8  State  v.  Dahl  (1896),  6  N*.  D.  81,  86.     • 

4  The  only  precedent  for  such  action  is  the  Rhode  Island  convention  of  1824. 
But  the  people  repudiated  the  work  of  this  convention,  two  to  one.  Mowry, 
"The  Dorr  War,"  pp.  30-33.  * 

6  See  pp.  73-74,  infra. 


68  CONSTITUTIONAL  CONVENTIONS 

to  upset  any  legislative  encroachments  upon  the  process  of  alter- 
ing the  fundamental  law;1  and  so,  until  we  see  whether  or  not 
the  courts  interfere  with  this  convention,  it  would  be  best  not  to 
regard  it  as  a  precedent. 
But  see  a  1915  court  opinion,  which  cites  Cooley: 

None  of  the  Constitutions  of  the  state  of  Louisiana  contains 
provisions  relative  to  conventions  of  the  people,  except  the  Con- 
stitution of  1812. 

This  silence  of  the  organic  law  on  the  subject-matter  leaves  the 
question  of  calling  such  convention  to  the  representatives  of  the 
people  in  legislative  session  convened.2 

Later  passages,  however,  in  this  same  opinion  show  that  the 
court,  like  Judge  Cooley,  regarded  the  legislature  as  the  mere 
initiator  of  the  proceedings,  and  regarded  the  electorate  as 
the  real  source  of  the  convention's  powers.3 

Compare  Ruling  Case  Law: 

Call  of  Constitutional  Conventions.  —  The  customary  manner 
of  calling  constitutional  conventions  in  the  United  States  is  by 
resolution  of  the  legislature  followed  by  a  submission  of  the  question 
to  the  electorate.4 

And  compare  a  1916  writer: 

The  weight  of  opinion  to-day  seems  to  be  that  the  legislature 
may  properly  submit  to  the  people  the  question  of  holding  a  con- 
vention to  revise  the  constitution,  and  if  the  voters  elect  to  hold 
such  a  convention  the  amendments  proposed  by  that  convention, 
if  ratified  by  the  people,  become  a  part  of  the  fundamental  constitu- 
tion, in  the  absence  of  any  provisions  of  the  constitution  prohibiting 
such  a  method  of  amendment.5 

Thus  convention-calling  is  not  a  regular  function  of  the  legis- 
lature, and  there  is  a  growing  tendency  toward  the  view  that 
the  legislature  has  no  power  to  call  a  convention  without  first 
obtaining  permission  from  the  people.  In  case  that  permission 
is  obtained,  who  is  it  that  calls  the  convention? 

The  Supreme  Court  of  Massachusetts  said  in  1833: 

1  Ellingham  v.  Dye  (1912),  178  Ind.  336. 

a  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  413. 

8  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  415. 

4  6  R.  C.  L.,  §  17,  p.  27. 

8  II  "Mass.  Law  Quarterly,"  1,  26. 


WHO  CALLS  THE  CONVENTION?  69 

If  .  .  .  the  people,  by  the  terms  of  their  vote,  decide  to  call  a 
convention  of  delegates  ...  we  are  of  opinion  thaksuch  delegates 
would  derive  their  whole  authority  and  commission  from  such 
vote.1 

Marcus  Morton,  one  of  the  judges  to  join  in  rendering  this 
opinion,  amplified  it  as  follows  in  the  Massachusetts  convention 
of  1853,  in  which  he  sat  as  a  delegate: 

This  Act  derives  its  force  directly  from  the  people.  The  legis- 
lature only  proposed  the  Act,  and  the  people  of  the  Commonwealth 
having  sanctioned  it  by  their  votes,  it  became  law.  .  .  .  The 
legislature  had  the  right  of  proposing  the  Act  calling  a  Convention, 
and  of  submitting  it  to  the  people;  but  its  whole  force  is  derived 
from  acceptance  of  the  Act  by  the  people  of  the  Commonwealth 
themselves.2 

The  New  York  Supreme  Court  in  1846  had  likewise  said: 

A  convention  is  not  a  government  measure,  but  a  movement  of 
the  people,  having  for  its  object  a  change,  either  in  whole  or  in 
part,  of  the  existing  form  of  government. 

As  the  people  have  not  only  omitted  to  confer  any  power  on  the 
Legislature  to  call  a  Convention,  but  have  also  prescribed  another 
mode  of  amending  the  organic  law,  we  are  unable  to  see  that  the 
Act  of  1845  had  any  obligatory  force  at  the  time  of  its  enactment. 
It  could  only  operate  by  way  of  advice  or  recommendation,  and 
not  as  a  law.  It  amounted  to  nothing  more  than  a  proposition  or 
suggestion  to  the  people,  to  decide  whether  they  would  or  would 
not  have  a  convention.  The  question  the  people  have  settled  in 
the  affirmative,  and  the  law  derives  its  obligation  from  that  act, 
and  not  from  the  power  of  the  Legislature  to  pass  it. 

The  people  have  not  only  decided  in  favor  of  a  Convention,  but 
they  have  determined  that  it  shall  be  held  in  accordance  with  the 
provisions  of  the  Act  of  1845.  No  other  proposition  was  before  them, 
and  of  course  their  votes  could  have  had  reference  to  nothing  else.3 

See  also  the  following  quotations  to  the  same  effect: 

A  constitutional  convention  lawfully  convened,  does  not  derive 
its  powers  from  the  legislature,  but  from  the  people.4 

1  Opinion  of  Justices  (1833),  6  Cush.  573,  575. 

*  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  76. 

8  Journal,  69th  N.  Y.  Assembly,  p.  919. 

4  Loomis  v.  Jackson  (1873),  6  W.  Va.  613,  708. 


70  CONSTITUTIONAL  CONVENTIONS 

It  is  the  People,  and  the  People  alone,  who  enacted  the  call  for 
this  Convention,  by  adopting  the  proposition  submitted  to  them  by 
the  Legislature  in  1900.1 

When  the  call  for  the  Convention  was  adopted  by  the  People,  in 
1900,  it  became  the  act  of  the  People,  and  not  of  the  Legislature, 
which  merely  framed  and  proposed  it.2 

The  people,  when  they  voted  for  the  holding  of  the  Convention, 
voted  for  it  to  be  held  "in  accordance  with  Act  No.  52  of  1896." 3 

The  Constitutional  Convention  .  .  .  derives  its  authority  di- 
rectly from  the  people.4 

We  cannot  suppose  that  the  voters  meant  that  it  was  their  will 
that  a  Convention  should  be  called,  without  any  regard  to  the  time, 
place,  or  manner,  of  calling  the  Convention;  for  that  was  all  pre- 
scribed in  the  Act  of  1852,  under  which  they  voted.  .  .  .  The 
voters  must  have  well  understood  the  whole  matter  when  they 
were  called  upon  to  signify  their  will.  When,  therefore,  they  voted 
that  it  was  expedient  to  call  a  Convention  to  revise  the  Constitu- 
tion, that  vote  must  have  carried  with  it  a  desire  that  the  Conven- 
tion should  be  called  with  regard  to  the  time,  place,  and  manner, 
indicated  in  the  Act;  and  that  the  vote  carried  with  it  everything 
contained  in  the  Act  in  relation  to  the  manner  of  voting,  the  holding 
of  meetings,  where  they  should  be  called,  and  where  the  elections 
should  be  held.  They  expected  and  intended  all  these  to  conform 
to  the  Act  when  they  gave  that  Act  their  sanction.5 

When  the  people,  acting  under  a  proper  resolution  of  the  Leg- 
islature, vote  in  favor  of  calling  a  convention,  they  are  pre- 
sumed to  ratify  the  terms  of  the  call,  which  thereby  becomes  the 
basis  of  the  authority  delegated  to  the  convention.6 

Opposed  to  this  idea  of  popular  origin  is  Jameson's  theory 
that  "  so  far  as  those  Acts  were  ever  to  have  force  as  laws,  they 
were  to  derive  it  from  the  legislature."  7 

Hon.  Joel  Parker  maintained  the  correctness  of  this  position 
in  the  Massachusetts  convention  of  1853,  as  follows: 

1  Braxton,  VTI  "Va.  Law  Reg.,"  100,  103. 

2  Braxton,  VII  "  Va.  Law  Reg./'  100,  104. 

•  State  v.  Capdevlelle  (1901),  104  La.  561,  569. 

•  Braxton,  VII  "  Va.  Law  Reg.,"  79,  97. 

6  Speech  of  Mr.  Hyde,  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  124. 

6  6  R.  C.  L.,  §  18,  p.  27;  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  415. 

7  Jameson,  p.  398. 


WHO   CALLS  THE   CONVENTION?  71 

The  contingency  attached  to  it  [convention  act  of  1852]  gave 
it  no  different  character  from  that  of  any  other  act  upon  the  statute 
book.  It  was  passed  under  the  constitution  and  by  the  legislature 
as  a  legislative  act.  The  act  provided  for  putting  the  question  to 
the  people  and  the  question  was  put.  The  people  answered  in  such 
a  way  that  the  rest  of  the  act  took  effect  as  an  act  of  the  legislature 
and  not  as  an  act  of  the  people  distinct  from  the  legislature;  it 
gave  to  the  act  no  other  character  than  that  which  it  had  possessed 
before  as  a  legislative  act.1 

Rufus  Choate  has  expressed  a  more  moderate  point  of  view 
than  Jameson  and  Parker,  in  the  following  words: 

What  did  the  people,  in  point  of  fact,  do  in  regard  to  this  point 
of  the  law  of  1852?  Was  it  not  exactly  this?  The  legislature  caused 
to  be  presented  to  them,  according  to  the  forms  of  law,  the  question 
for  substance,  whether  they  deemed  it  expedient  that  a  Conven- 
tion should  be  called  to  consider  of  revising  the  Constitution.  They 
answered  yes;   and  there  they  rested.  .  .  . 

Under  that  repose,  under  that  inaction  of  the  people,  after 
that  manifestation  of  their  will  in  that  general  form,  it  became  a 
matter  for  mere  law  in  its  ordinary  course,  to  devise  and  enact 
details.2 

But  we  should  not  forget  that  the  act  discussed  by  the 
New  York  Supreme  Court  and  by  them  held  to  have  been 
enacted  in  its  entirety  by  the  electorate,  was  exactly  similar 
to  the  one  discussed  by  Rufus  Choate. 

Thus  it  will  be  seen  that  there  are  two  theories  with  respect 
to  who  enacts  the  convention  act,  under  which  the  people  vote 
to  hold  a  convention.  The  theory  with  the  greatest  weight  of 
authority  behind  it  is  based  upon  the  fact  that  there  would  be 
no  convention  unless  the  people  voted  affirmatively,  that  an 
affirmative  vote  would  result  in  holding  exactly  the  sort  of  con- 
vention in  every  detail  provided  in  the  act,  and  that  the  people 
are  presumed  to  know  the  terms  of  the  act  under  which  they 
vote.  The  conclusion  drawn  from  this  is  that  the  convention 
act  in  its  every  detail  is  enacted  by  the  people  voting  under  it. 

The  opposing  theory,  as  laid  down  by  Choate,  is  based  upon 
the  fact  that  the  only  question  expressly  submitted  to  the 
people  is  "Shall  there  be  a  convention?'';  that  if  the  legislature 
had  merely  submitted  this  question  without  providing  the  de- 

1  Deb.  Mass.  Conv.  1853,  Vol.  I,  pp.  154-155. 

2  Deb.  Mass.  Conv.  1853,  Vol.  I,  pp.  117-119. 


72  CONSTITUTIONAL  CONVENTIONS 

tails  in  advance,  it  would  have  been  competent  for  the  legis- 
lature to  have  provided  the  details  after  an  affirmative  vote 
by  the  electorate.  From  this  they  conclude  that  the  providing 
of  details  before  the  vote  of  the  electorate  is  equally  as  much 
the  action  of  the  legislature. 

In  view  of  the  almost  evenly  divided  opinion  on  this  subject, 
both  points  of  view  are  fully  expressed  here  »without  discrimi- 
nation, although  the  author  personally  strongly  inclines  to  the 
former. 

Several  court  dicta  go  to  extremes  in  asserting  the  popular 
origin  of  conventions.  Thus  the  Pennsylvania  Supreme  Court 
has  held  that  the  mere  voting  for  delegates,  under  a  convention 
act  which  the  legislature  has  not  submitted  to  the  people,  makes 
that  statute  the  act  of  the  people.  Their  exact  language  is  as 
follows: 

When,  therefore,  the  people  elected  delegates  under  the  second 
Act,  they  adopted  the  terms  it  contained  *by  acting  under  it.1 

Dodd  comments  adversely  on  this  decision  as  follows: 

In  the  Pennsylvania  decision  cited  above:  the  question  of 
holding  a  convention  was  submitted  to  the  people  and  decided 
in  the  affirmative;  the  subsequent  legislative  act  calling  the  con- 
vention (this  act  was  not  submitted  to  the  people)  sought  to  im- 
pose certain  restrictions  upon  the  convention,  and  the  court 
then  said  that  these  restrictions  were  imposed  by  the  people; 
the  facts  found  by  the  court  did  not  conform  to  the  real  facts  of 
the  case.2 

It  is  clear,  of  course,  that  the  people  in  voting  for  delegates  to 
a  convention  have  no  way  of  expressing  either  approval  or  dis- 
approval of  the  terms  of  the  act  under  which  the  convention  is 
called;  here  clearly  there  is  no  popular  adoption  of  restrictions 
sought  to  be  imposed  upon  a  convention  by  legislative  act.3 

Yet  the  Pennsylvania  idea  has  been  accepted  in  other  de- 
cisions, as  the  following  quotations  show: 

The  people  elected  delegates  in  reference  to  this  call;  it  was 
not  contemplated  that  they  should  do  any  act  which  was  not 
necessary  to  give  effect  to  the  object  and  purpose  of  the  people.4 

1  Wells  v.  Bain  (1872),  75  Pa.  39,  55. 

2  Dodd,  pp.  76-77. 
■  Dodd,  p.  75. 

"  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  222-223. 


WHO  CALLS  THE  CONVENTION?  73 

The  convention  was  called  upon  the  lines  which  were  suggested 
by  the  Legislature,  and  in  exact  conformity  with  the  will  of  the 
sovereign,  as  expressed  at  an  election  duly  held  in  keeping  there- 
with, and  the  delegates  duly  chosen  thereto  were  regularly  con- 
vened.1 

When  a  people  act  through  a  law,  the  act  is  theirs,  and  the 
fact  that  they  used  the  legislature  as  their  instrument  to  confer 
their  powers,  makes  them  the  superiors  and  not  the  legislature.2 

Under  the  Pennsylvania  theory,  all  convention  acts,  under 
which  the  electorate  chooses  the  delegates,  become  thereby  the 
product  of  a  popular  vote. 

The  only  alternative  theory  would  appear  to  be  the  ingen- 
ious one  suggested  by  Holcombe  in  the  following  language: 

Where  the  call  for  the  convention  is  not  submitted  to  the  people 
for  an  expression  of  their  consent,  such  power  as  the  convention 
may  possess  is  apparently  delegated  to  it  by  the  legislature  on 
its  own  authority.  It  is  an  accepted  principle  of  the  unwritten 
constitution,  however,  that  legislative  power  may  not  be  dele- 
gated by  the  body  on  which  the  people  have  conferred  it.  The 
calling  of  a  convention,  therefore,  without  a  vote  of  the  people 
must  be  regarded  as  an  abdication  of  power  by  the  regular  legisla- 
ture in  favor  of  an  extra-constitutional  body.  Such  a  body  is  a 
revolutionary  rather  than  a  constitutional  convention,  and  the 
extent  of  its  powers  would  apparently  be  determined  by  itself, 
subject  only  to  the  limits  which  the  people  in  their  capacity  of 
ultimate  sovereign  may  be  able  to  impose.3 

So  much  for  cases  in  which  the  legislature  frames  the  conven- 
tion act  before  the  popular  vote.  Even  when  the  act  is  framed 
after  the  popular  vote,  the  legislature  is  not  proceeding  under 
its  general  powers,  but  rather  under  a  special  grant  of  power 
contained  in  the  favorable  vote.  Thus  the  people  choose  the 
legislature  as  their  agents  to  frame  the  convention  act. 

Dodd  says: 

There  are  dicta  to  this  effect  based  upon  the  theory  that  the 
people  in  voting  for  a  convention  confer  upon  the  legislature 
authority  to  limit  the  powers  of  such  conventions.4 

1  State  v.  Favre  (1899),  51  La.  Ann.  434,  436. 

2  Wood's  Appeal  (1874),  75  Pa.  59,  72. 
8  Holcombe,  State  Government,  p.  126. 

4  Dodd,  p.  87,  n.  26.  But  he  disagrees  with  this,  saying:  "There  would  be 
a  strong  presumption  that  in  voting  for  a  convention  they  meant  to  vote  for 
one  with  full  power."    Dodd,  p.  76.    Compare  pp.  103-104,  infra. 


74  CONSTITUTIONAL  CONVENTIONS 

And  the  Supreme  Court  of  Indiana  has  said: 

The  General  Assembly  .  .  .  merely  asked  the  people  to  express 
their  will  in  relation  to  calling  a  convention  .  .  .  and  when  it  was 
expressed  it  was  a  warrant  and  a  command  which  the  legislative 
authority  carried  out  as  given.1 

Of  course,  in  case  the  entire  act  is  expressly  submitted  to  the 
people  for  ratification  (as  is  required  by  the  constitutions  of 
Oregon  and  Oklahoma,  and  as  is  regularly  practiced  in  many 
other  States),2  there  would  seem  to  be  no  doubt  that  it  derives 
its  force  and  validity  from  the  popular  approval. 

Dodd,  however,  points  out  that  it  is  necessary  in  such  a  case 
for  the  people  to  pass  on  two  questions  in  one,  namely,  whether 
they  want  a  convention,  and  whether  they  want  one  under  the 
terms  proposed  by  the  legislature;  and  he  infers  from  this  that 
there  is  some  doubt  as  to  whether  even  such  a  statute  is 
the  act  of  the  people.3  This  seems  like  far-fetched  reasoning, 
however. 

The  only  situation  in  which  one  could  be  absolutely  certain 
that  the  convention  act  was  the  product  of  the  legislature  alone, 
would  be  if  the  legislature  called  the  convention  and  itself 
chose  the  delegates.4  Yet  there  is  argumentative  authority 
even  against  this,  for  in  the  case  of  the  Pennsylvania  conven- 
tion of  1872,  the  convention  act  was  not  submitted  to  the 
people,  and  the  legislature  chose  part  of  the  delegates;  yet  the 
entire  proceeding  was  held  by  the  courts  to  be  popular  in  its 
nature.5 

But,  as  we  saw  early  in  this  chapter,  the  whole  question  of 
whether  the  legislature  or  the  people  enacts  the  convention 
act  may  be  cleared  up  by  a  consideration  of  the  relative  powers 
of  the  legislature  and  the  people.  We  have  already  seen  that 
the  people  have  a  supraconstitutional  right  to  take  steps  to 
change  their  government,  and  that  this  right  is  conceded  by 
most  constitutions.6  Where  does  the  legislature  derive  any  right 
to  take  steps  to  change  the  form  of  government  except  in  cases 

"  Ellingham  v.  Dye  (1912),  178  Ind.  336,  377-378. 

2  Dodd,  p.  75. 

8  Dodd,  p.  75. 

4  As  in  the  case  of  the  Georgia  convention  of  1788.    Jameson,  p.  135. 

8  Wells  v.  Bain  (1872),  75  Pa.  39,  52. 

6  Supra,  pp.  13-14. 


WHO  CALLS  THE  CONVENTION?  75 

in  which  that  right  is  expressly  conferred  upon  the  legislature 
by  either  the  constitution  or  the  people?  Legislatures  have  no 
inherent  rights.  Their  powers  are  derived  from  the  constitu- 
tion and  hence  in  States  whose  constitutions  do  not  provide  for 
the  holding  of  a  constitutional  convention,  it  would  seem  that 
the  legislature  cannot  call  a  convention,1  and  hence  that  a  con- 
vention in  order  to  be  valid  must  be  the  act  of  the  people. 

Yet,  although  the  legislature  cannot  lawfully  call  a  conven- 
tion unless  it  possesses  authority  derived  either  from  the  con- 
stitution or  directly  from  the  people,  on  the  other  hand  the 
people  cannot  call  a  constitutional  convention  without  some 
means  being  first  provided  for  the  expression  of  popular  opin- 
ion.2 It  is  also  necessary,  either  before  or  after  the  people  have 
expressed  their  wish  for  a  convention,  for  some  law  to  provide 
for  the  election  of  the  delegates. 

At  one  time  in  the  early  history  of  the  country  the  view  was 
entertained  that  the  people  could  legally  assemble  in  convention 
and  revise  their  constitution  without  the  sanction  of  the  legisla- 
ture, but  this  doctrine  is  no  longer  recognized.3 

The  Pennsylvania  Supreme  Court  has  said  in  this  connec- 
tion: 

When  a  law  becomes  the  instrumental  process  of  amendment, 
it  is  not  because  the  legislature  possesses  any  inherent  power  to 
change  the  existing  constitution  through  a  convention,  but  because 
it  is  the  only  means  through  which  an  authorized  consent  of  the 
whole  people,  the  entire  state,  can  be  lawfully  obtained  in  a  state 
of  peace.  ...  If  the  legislature,  possessing  these  powers  of 
government,  be  unwilling  to  pass  a  law  to  take  the  sense  of  the 
people,  .  .  .  the  remedy  is  still  in  their  own  hands;  they  can 
elect  new  representatives  that  will.  .  .  .  The  people  required  the 
law,  as  the  act  of  the  existing  government,  to  which  they  had  ap- 
pealed under  the  Bill  of  Rights,  to  furnish  them  legal  process  to 
raise  a  convention  for  revision  of  their  fundamental  compact, 
and  without  which  legal  process  the  act  of  no  one  man  could  bind 
another.4 

Judge  Jameson  comments  on  this  decision  in  the  following 
words,  the  conciseness  of  which  leaves  nothing  further  to  be 
said  on  the  subject. 

1  Supra,  pp.  62-65.  2  Supra,  pp.  16-19. 

3  6  R.  C.  L.,  §  17,  p.  27.  4  Wells  v.  Bain  (1872),  75  Pa.  39,  47-48. 


76  CONSTITUTIONAL  CONVENTIONS 

Admitting  the  competency  of  the  people  to  call  conventions, 
it  would  be  impracticable,  except  through  legislative  interposition.1 

A  supraconstitutional  right  requiring  the  assistance  of  con- 
stitutional authority  is  certainly  an  anomaly,  and  yet  that  is 
what  exists  in  the  case  of  conventions.  It  has  already  been 
pointed  out  in  Chapter  II  that  the  reason  for  the  failure  of  Dorr's 
Rebellion  in  Rhode  Island  was  this  one  technical  point  —  he 
did  not  have  the  assistance  of  duly  constituted  authority,  and 
hence  there  was  no  means  of  ascertaining  whether  he  repre- 
sented the  people  or  merely  a  faction  of  the  people.2 

And  yet  as  Dodd  points  out,3  the  legislature  may  stand  in  the 
way  of  the  fulfillment  of  the  popular  will,  just  as  the  legislatures 
have  in  some  cases  nullified  constitutional  provisions  by  refus- 
ing to  pass  an  enabling  act  thereon.  The  remedy  of  electing  new 
representatives,  as  suggested  by  the  Pennsylvania  Supreme 
Court,4  is  not  sufficient. 

In  one  case  at  least,  difficulty  has  been  encountered  in  ob- 
taining the  passage  of  a  law  for  the  assembling  of  a  convention 
authorized  by  the  people.  In  1886  a  popular  vote  taken  in  New 
York  (under  the  constitution  of  1846,  which  provided  for  such 
a  vote  once  every  twenty  years)  was  overwhelmingly  in  favor 
of  the  calling  of  a  convention.  But,  owing  to  a  disagreement 
between  the  legislature  and  the  Governor,  who  belonged  to  dif- 
ferent political  parties,  it  was  impossible  for  some  time  to  ob- 
tain the  passage  of  a  law  authorizing  the  convention,  and  the 
convention  did  not  actually  meet  until  eight  years  after  the 
popular  vote.  In  the  constitution  adopted  by  this  convention, 
it  was  sought  to  avoid  such  a  difficulty  for  the  future  by  mak- 
ing the  constitutional  provisions  regarding  a  convention  self- 
executing.5 

Not  merely  is  the  popular  vote  on  the  question  of  holding  a 
convention  to  be  taken  at  twenty-year  intervals,  but  the  last 
vestige  of  intervention  by  the  legislature  in  the  matter  is  swept 
finally  away.  In  case  the  people  vote  in  the  affirmative,  the  con- 
stitution itself  provides,  minutely,  for  the  apportionment,  election, 
organization,  and  procedure  of  the  convention.  Thus  there  is 
now  imbedded  in  the  constitution  of  New  York  a  complete  system 

V1  Jameson,  p.  539.  2  See  p*p.  21-22,  supra. 

I  Dodd,  pp.  55-56,  and  n.  53.  4  Wells  v.  Bain  (1872),  75  Pa.  39,  47. 

*  Dodd,  p.  55. 


WHO  CALLS  THE  CONVENTION?  77 

for  total  revision  of  the  constitution  of  that  state  beyond  the 
control  of  the  legislature.  The  people  initiate,  the  convention 
drafts,  the  people  enact.1 

The  popular  will  was  similarly  thwarted  in  New  Hampshire 
in  1860  and  1864.2 

The  Michigan  constitution  of  1908  accomplishes  the  same 
result  by  provisions  similar  to  those  of  the  New  York  con- 
stitution of  1894.  The  Missouri  constitution  of  1875  also  makes 
the  assembling  of  a  convention  independent  of  legislative 
action,  after  the  people  have  voted  that  a  convention  shall  be 
held;  the  constitution  itself  containing  full  provisions  regarding 
the  apportionment  and  election  of  delegates.  Writs  for  an 
election  are  required  to  be  issued  by  the  Governor  after  a 
favorable  vote  of  the  people.3 

But,  in  all  of  the  States  except  those  mentioned  above,  the 
assembling  of  conventions  is  to  a  large  extent  dependent  upon 
legislative  action,  even  after  the  people  have  voted  that  a 
convention  shall  be  held.4 

From  all  the  foregoing,  we  can  make  the  following  deductions 
as  to  who  it  is  that  calls  a  convention;  in  other  words,  who  it 
is  that  enacts  the  convention  act. 

If  the  act  originates  by  an  initiative  petition,  it  is  clear  that 
the  people  pass  the  act,  although  there  may  be  some  dispute 
as  to  whether  they  proceed  under  the  authority  of  the  con- 
stitution, or  under  a  supraconstitutional  authority,  with  the 
mere  assistance  of  the  constitution. 

In  case  the  constitution  provides  for  the  holding  of  a  con- 
vention without  either  legislative  or  popular  action,  such  a 
convention  will  probably  derive  its  whole  force  and  validity 
from  the  constitution.  If  the  constitution  provides  for  the 
holding  of  a  convention  after  action  by  the  legislature  alone, 
it  is  probable  that  such  a  convention  derives  its  validity  from 
the  constitution  and  is  called  into  being  by  the  legislature. 
But  in  the  last  two  cases  it  may  well  be  that  the  people,  by 
acting  under  the  convention  act  or  constitutional  provision, 
ratify  it  and  make  it  theirs. 

1  Judson,  Essentials  of  a  Written  Const.  (U.  of  Chi.  1903),  p.  21. 

2  Dodd,  p.  55,  n.  53. 

3  Dodd,  pp.  55-56. 

4  Compare  the  discussion  of  this  same  point,  pp.  116-117,  infra. 


78  CONSTITUTIONAL  CONVENTIONS 

If  the  constitution  authorizes  a  convention  after  popular  vote, 
it  may  be  that  the  convention  is  the  creature  of  the  people  with 
the  permission  of  the  constitution;  but  owing  to  the  fact  that 
the  constitution  could  not  withhold  this  permission,  and  in  the 
light  of  the  four  cases  in  which  the  constitutional  methods  were 
disregarded,  it  is  possible  that  even  such  a  convention  derives 
its  whole  authority  from  the  popular  vote,  and  that  the  con- 
stitution merely  provides  the  means,  the  same  as  a  statute  would 
have  done. 

When  the  legislature  passes  a  convention  act  without  sub- 
mitting it  to  the  people,  if  there  is  a  previous  vote  of  the  people 
authorizing  a  convention  in  general  terms,  it  may  be  that  this 
vote  delegates  to  the  legislature  the  power  to  enact  details. 

When  the  legislature  submits  the  question  to  the  people, 
either  with  or  without  the  sanction  of  the  constitution,  the 
weight  of  authority  is  that  the  convention  derives  its  whole 
sanction  from  the  popular  vote,  and  that  such  details  as  are 
enacted  by  the  legislature  prior  to  the  popular  vote  derive  their 
binding  force  from  the  people  and  not  from  the  legislature; 
a  fortiori,  if  the  legislature  submits  the  entire  act  for  popular 
ratification. 

Yet  we  have  seen  that  there  is  need  of  a  means  through 
which  the  people  may  express  their  will.  This  may  be  pro- 
vided either  by  a  statute  or  by  a  constitutional  provision; 
preferably  the  latter,  as  that  frees  the  convention  from  the 
danger  of  legislative  usurpation. 


Chapter  VI 
LEGISLATURES  AS  CONVENTIONS 

In  the  preceding  chapter  we  discussed  the  power  of  the 
legislature  to  call  a  constitutional  convention.  There  we  found 
that,  although  the  present  tendency  is  to  regard  a  reference  of 
the  question  to  the  people  as  absolutely  essential,  yet,  in  the 
early  days,  this  was  not  always  done.1  In  fact,  on  occasions, 
the  legislature  has  even  elected  a  part  or  all  of  the  delegates 
itself.2 

The  original  conventions  of  the  period  of  the  Revolutionary 
War  combined  the  functions  of  conventions  and  legislatures,3 
but  as  the  convention  system  developed,  the  two  bodies  gradu- 
ally became  more  and  more  differentiated.  Thus  we  see  the 
western  towns  of  New  Hampshire  protesting  in  1777  against 
the  framing  of  a  permanent  plan  of  government  by  the  legis- 
lature,4 and  we  see  the  people  of  Massachusetts  in  1778  over- 
whelmingly voting  down  a  constitution  drafted  by  a  legislature 
which  had  resolved  itself  into  a  constitutional  convention.5 

A  constitution  drafted  by  a  legislative  commission  in  Michigan 
in  1873,  and  constitutions  drafted  by  the  Rhode  Island  legis- 
lature and  submitted  in  1898  and  1899,  were  rejected  by  the 
people.6 

The  only  example  of  successful  drafting  of  a  constitution 
by  a  legislature  occurred  in  the  Territory  of  Nebraska  in  1866. 
But  it  is  interesting  to  note  that  the  Supreme  Court  of  that 
State  held  the  entire  proceeding  to  be  irregular,  being  cured, 
however,  by  the  admission  of  the  State  into  the  Union.7 

Legislatures  generally  have  not  presumed  that  they  had  any 
power  to  resolve  themselves  into  constitutional  conventions, 

1  See  p.  66,  supra.  2  See  p.  74,  supra. 

3  See  p.  4,  supra.  4  See  p.  6,  supra. 

6  See  pp.  5,  6-7,  supra.  6  Dodd,  p.  39,  n.  20. 

7  Brittle  v.  People  (1873),  2  Neb.  198,  216. 


80  CONSTITUTIONAL  CONVENTIONS 

until  we  come  to  the  case  of  Indiana  in  1911.  The  general 
assembly  of  that  year  drafted  and  incorporated  in  a  bill  what 
was  therein  termed  a  proposed  new  constitution,  which  was 
really  a  copy  of  the  existing  constitution  with  twenty-three 
changes  in  its  provisions,  and  submitted  it  to  a  vote  of  the 
people  at  the  general  election  to  be  held  in  November,  1912.1 

The  Indiana  legislature  doubtless  proceeded  upon  the  theory 
that,  if  a  legislature  can  call  a  convention  and  choose  the  dele- 
gates to  it,  the  legislature  can  call  itself  a  convention  and 
choose  its  own  members  as  the  delegates.  Doubtless  the 
legislature  thought  that,  even  though  this  method  of  procedure 
was  contrary  to  both  the  customary  convention  method  and  the 
constitutional  method  of  submission  by  two  successive  legis- 
latures; yet,  nevertheless,  a  popular  ratification  of  the  proposed 
new  constitution  would  cure  all  irregularities  in  its  inception. 

Maybe  the  legislature  was  right  in  this  latter  assumption,2 
but  that  can  never  be  ascertained,  for  the  Supreme  Court  of 
the  State  nipped  the  proceeding  in  the  bud  by  enjoining  the 
submission  of  this  new  constitution  to  the  people.  The  Supreme 
Court  of  California  had  also,  in  an  earlier  decision,  given  some 
intimation  as  to  what  the  law  would  be  in  a  case  like  this. 

These  two  decisions  have  developed  the  following  principles 
of  law  relative  to  the  powerlessness  of  the  legislature  to  resolve 
itself  into  a  constitutional  convention. 

First:  A  constitution  is  a  legislative  act  of  the  people.  On 
this  point  the  Indiana  Court  says: 

A  state  constitution  has  been  aptly  termed  a  legislative  act  by 
the  people  themselves  in  their  sovereign  capacity,  and,  therefore, 
the,  paramount  law.3 

Secondly:  There  is  a  marked  distinction  between  the  legis- 
lative powers  of  the  people  and  the  legislative  powers  of  the 
legislature.    On  this  see  the  following: 

To  erect  the  State  or  to  institute  the  form  of  its  government 
is  a  function  inherent  in  the  sovereign  people.  To  carry  out  its 
purpose  of  protecting  and  enforcing  the  rights  and  liberties  of  which 
the  ordained  constitution  is  a  guaranty,  by  enacting  rules  of  civil 

1  Ind.  Laws,  1911,  c.  118. 

2  See  p.  216,  infra. 

3  EUingham  v.  Dye  (1912),  178  Ind.  336, 345. 


LEGISLATURES  AS  CONVENTIONS  81 

conduct  relating  to  the  details  and  particulars  of  the  government 
instituted,  is  the  function  of  the  legislature  under  the  general  grant 
of  authority.  It  needed  no  reservation  in  the  organic  law  to  pre- 
serve to  the  people  their  inherent  power  to  change  their  government 
against  such  a  general  grant  of  legislative  authority.1 

A  constitution  is  legislation  direct  from  the  people,  acting  in 
their  sovereign  capacity,  while  a  statute  is  legislation  from  their 
representatives,  subject  to  limitations  prescribed  by  the  superior 
authority.2 

The  Parliament  of  Great  Britain,  is  possessed  of  all  legislative 
powers  whatsoever.  It  can  enact  ordinary  statutes,  and  it  can 
pass  laws  strictly  fundamental.    Not  so  with  our  legislatures.3 

The  two  houses  and  the  governor  constitute  the  entirety  of  the 
body  which  considers  and  finally  determines  all  matters  of  legis- 
lation. But  it  is  the  two  houses  and  the  great  mass  of  the  electors 
of  the  commonwealth  combined  which  constitute  the  body  which 
considers  and  determines  the  questions  of  constitutional  amend- 
ment. With  all  matters  of  legislation  the  people  in  their  capacity 
of  electors  have  nothing  to  do.  But  with  constitutional  amend- 
ments they  have  everything  to  do,  for  the  ultimate  fate  of  all 
proposed  amendfnents  depends  absolutely  upon  their  approval. 
If  they  approve,  the  proposed  amendment  at  once  becomes  a  part 
of  the  constitution;  if  they  disapprove,  it  fails  utterly  and  never 
comes  into  existence.  The  fundamental  distinction  which  thus 
becomes  most  manifest,  between  the  mere  legislative  machinery  of 
the  government,  and  that  machinery  which  alone  possesses  the 
power  to  ordain  amendments  to  the  constitution  of  the  common- 
wealth is  most  radical  and  extreme.4 

We  have  seen  that,  in  the  United  States,  the  constitutional  Con- 
vention belongs  to  the  genus  legislature,  —  by  which  it  is  meant 
that  its  proper  function  is  to  elaborate,  to  a  certain  extent,  to  be 
determined  by  the  tenor  of  its  commission,  the  fundamental  law, 
much  as  the  legislature  enacts  the  ordinary  municipal  law.  Of 
these  two  species  of  law,  the  distinction  between  which  has  been 
already  explained,  it  is  the  important  thing  to  note,  that  the 
one  denominated  fundamental  is,  generally  speaking,  the  work 
only  of  a  Convention,  a  special  and  extraordinary  assembly,  con- 
vening at  no  regularly  recurring  periods,  but  whenever  the  harvest 

1  Ellingkam  v.  Dye  (1912),  178  Ind.  336,  344. 

2  Ellingkam  v.  Dye  (1912),  178  Ind.  336,  345. 

3  Ellingkam  v.  Dye  (1912),  178  Ind.  336,  347. 

4  Commonwealth  v.  Griest  (1900),  196  Pa.  396,  410-411. 


82  CONSTITUTIONAL  CONVENTIONS 

of  constitutional  reforms  has  become  ripe;  while,  on  the  other 
hand,  the  ordinary  statute  law,  whose  provisions  are  tentatory  and 
transient,  is,  regularly  at  least,  the  work  of  a  legislature,  —  a  body 
meeting  periodically  at  short  intervals  of  time.1 

Thirdly:  The  legislature,  in  taking  any  steps  toward  the 
framing  of  a  constitution,  does  not  act  in  its  legislative  capacity. 
This  we  have  already  seen  in  the  last  chapter,  where  were 
reviewed  many  authorities  to  the  effect  that  the  calling  of  a 
convention,  being  a  step  in  the  framing  of  fundamental  law,  is 
not  strictly  within  general  legislative  powers. 

Many  decisions  bearing  more  or  less  on  this  point,  but 
relating  more  particularly  to  the  extralegislative  nature  of  the 
proposal  of  constitutional  amendments,  are  collected  in  the 
Indiana  decision.2 

Furthermore,  the  Indiana  decision  says  that  in  the  ordinary 
legislative  method  of  constitutional  amendment,  the  legislature 
is  quoad  hoc  empowered  to  act  as  a  convention. 

By  express  constitutional  provision,  they  act  in  conventional 
capacity,  in  the  way  of  recommending  specific  amendments  to 
their  constitution.3 

The  Indiana  Court  quotes  with  approval  the  following  from 
the  Supreme  Court  of  Arkansas: 

The  General  Assembly,  in  amending  the  constitution,  does  not 
act  in  the  exercise  of  its  ordinary  legislative  authority,  of  its  gen- 
eral powers;  but  it  possesses  and  acts  in  the  character  and  capac- 
ity of  a  convention,  and  is  quoad  hoc,  a  convention  expressing 
the  supreme  will  of  the  sovereign  people.4 

and  Jameson's  following  comment  thereon: 

It  expresses  with  admirable  brevity,  force,  and  clearness,  the 
true  doctrine  in  regard  to  the  power  of  our  General  Assemblies 
under  similar  clauses  of  our  Constitutions.5 

This,  however,  cannot  be  meant  literally,  for  it  is  easily  ob- 
servable that  the  courts  will  enforce  strict  compliance  with  the 

1  Jameson,  p.  422. 

2  Ellingham  v.  Dye  (1912),  178  Ind.  336,  347-352.  Cf.  State  v.  Hall  (1916), 
159  N.  W.  281,  282. 

8  FMngham  v.  Dye  (1912),  178  Ind.  336,  347. 

4  State  v.  Cox  (1848),  3  English  (Ark.)  436,  444;  quoted  178  Ind.  336,  348. 
6  Jameson,  p.  586;  quoted  178  Ind.  336,  348.     Cf.  Collier  v.  Frierson  (1854), 
24  Ala.  100,  102. 


LEGISLATURES  AS  CONVENTIONS  83 

constitutional  provisions  for  the  legislative  method  of  amend- 
ment, whereas  they  are  much  more  cautious  in  interfering  with 
the  popular  method  of  amendment  through  the  medium  of  a 
convention. 

The  language  used,  however,  is  all  right  as  illustrating  the 
principle  that  the  legislature,  in  framing  a  constitutional  change, 
is  not  acting  as  a  legislature,  but  is  rather  acting  under  an  extra- 
legislative  power  specifically  delegated  to  it  by  the  people  for 
this  purpose. 

Fourthly :  The  legislature  gets  by  express  grant,  its  power  to 
frame  constitutional  changes.    See  the  following  quotations : 

In  submitting  propositions  for  the  amendment  of  the  consti- 
tution, the  legislature  is  not  in  the  exercise  of  its  legislative  power, 
or  any  sovereignty  of  the  people  that  has  been  intrusted  to  it,  but 
is  merely  acting  under  a  limited  power  conferred  upon  it  by  the 
people. 

The  extent  of  this  power  is  limited  to  the  object  for  which  it  is 
given,  and  is  measured  by  the  terms  in  which  it  has  been  conferred, 
and  cannot  be  extended  by  the  legislature  to  any  other  object,  or 
enlarged  beyond  these  terms.1 

This  right  to  propose  amendments  to  the  constitution  is  not  the 
exercise  of  legislative  power  by  the  General  Assembly  in  its  ordi- 
nary sense,  but  such  power  is  vested  in  the  legislature  only  by  the 
grant  found  in  the  constitution,  and  such  power  must  be  exercised 
within  the  terms  of  the  grant.2 

Where  authority  is  specifically  granted  to  the  legislature  by  the 
constitution  to  prepare  and  submit  amendments,  that  establishes 
its  competency,  and,  to  the  extent  of  the  specific  authorization 
and  within  its  limitation,  it  is  always  to  be  considered  as  chosen 
for  the  purpose.3 

Power  over  the  Constitution  and  its  change  has  ever  been  con- 
sidered to  remain  with  the  people  alone,  except  as  they  had,  in 
their  Constitution,  specially  delegated  powers  and  duties  to  the 
legislative  body  relative  thereto  for  the  aid  of  the  people  only.4 

Fifthly:  It  follows  that  the  legislature  cannot  act  as  a  con- 
vention without  a  similar  express  grant,  either  in  the  constitu- 

1  Livermore  v.  Waite  (1894),  102  Cal.  113,  118. 

2  Chicago  v.  Reeves  (1906),  220  111.  274,  288. 

3  Ellingham  v.  Dye  (1912),  178  Ind.  336,  353. 

4  Ellingham  v.  Dye  (1912),  178  Ind.  336,  357. 


84  CONSTITUTIONAL  CONVENTIONS 

tion,  or  given  by  the  people  under  their  extraconstitutional 
powers. 

The  legislature  is  not  authorized  to  assume  the  function  of  a 
constitutional  convention,  and  propose  for  adoption  by  the 
people  a  revision  of  the  entire  constitution  under  the  form  of  an 
amendment.1 

This  is  quoted  with  approval  by  the  Indiana  Court.2 
Jameson  has  said: 

It  is  thoroughly  settled  that,  under  our  Constitutions,  State 
and  Federal,  a  legislature  cannot  exercise  the  functions  of  a  con- 
vention —  cannot,  in  other  words,  take  upon  itself  the  duty  of  fram- 
ing, amending,  or  suspending  the  operation  of  the  fundamental 
law.3 

This  also  is  cited  with  the  approval  by  the  Indiana  Court.4 
Sixthly:  The  general  grant  of  legislative  powers  is  not 
enough  to  empower  the  legislature  either  to  act  as,  or  to  call,  a 
convention;  for,  as  we  have  seen,  the  framing  of  fundamental 
law  is  not  a  strictly  legislative  duty.5  Thus  the  Indiana  Court 
says: 

But  this  general  grant  of  authority  to  exercise  the  legislative 
element  of  sovereign  power  has  never  been  considered  to  include 
authority  over  fundamental  legislation.  It  has  always  been  de- 
clared to  vest  in  the  legislative  department  authority  to  make,  alter 
and  repeal  laws,  as  rules  of  civil  conduct  pursuant  tofthe  Constitu- 
tion made  and  ordained  by  the  people  themselves  and  to  carry  out 
the  details  of  the  government  so  instituted.6 

In  assuming  to  legislate  in  relation  to  structural  changes  in  the 
government,  the  legislature  is  not  acting  within  the  power  it  takes 
under  the  general  grant  of  authority  to  enact,  alter  and  repeal  laws 
under  and  pursuant  to  the  Constitution.  For,  to  deal  with  or- 
ganic law  —  to  determine  what  it  shall  be,  when  it  needs  change,  the 
character  of  the  change  and  to  declare  and  ordain  it  —  is  peculiarly 

1  Liveware  v.  Waite  (1894),  102  Cal.  113,  118. 

2  Ellingham  v.  Dye  (1912),  178  Ind.  336,  349. 
8  Jameson,  p.  422. 

4  Ellingham  v.  Dye  (1912),  178  Ind.  336,  352. 

6  See  full  discussion  of  this  point,  pp.  80-83,  infra. 

■  Ellingham  v.  Dye  (1912),  178  Ind.  336,  343. 


LEGISLATURES  AS  CONVENTIONS  85 

a  power  belonging  to  the  people,  and  this  fact  they  have  declared, 
as  we  have  seen,  in  the  first  section  of  the  bill  of  rights.1 

Had  it  been  thought  then  that  the  general  grant  of  legislative 
authority  placed  in  the  hands  of  the  General  Assembly  the  power  to 
accomplish  the  same  work  which  that  body  was  asking  the  people 
to  authorize  a  constitutional  convention  to  do,  it  is  not  to  be  sup- 
posed that  the  fruitless  efforts  to  secure  a  convention  would  have 
continued.  But,  on  the  contrary,  it  is  highly  probable  that  the 
General  Assembly  would  itself  have  done  the  work  of  revision  or 
reframing  amendments,  and  thus  have  avoided  the  delay  and  the 
greater  expense,  entailed  by  a  convention.  No  one  then  claimed 
that  the  framing  of  fundamental  law  might  be  done  by  legislative 
act  under  the  general  grant  of  legislative  authority.2 

Seventhly:  Nevertheless,  by  long  custom  the  legislatures  have 
acquired  the  power  to  assist  the  people  to  hold  a  constitutional 
convention.    Thus  Jameson  has  said: 

It  is  clear  that  no  means  are  legitimate  for  the  purpose  indicated 
but  Conventions,  unless  employed  under  an  express  warrant 
of  the  Constitution.3 

The  author's  conclusion  is,  that  the  change  or  amendment  of  the 
written  constitutions  which  prevail  under  the  American  system  is 
confined  to  two  modes:  1,  by  the  agency  of  conventions  called  by 
the  General  Assembly  in  obedience  to  a  vote  of  the  people,  and  usu- 
ally pursued  when  a  general  revision  is  desired;  and  2,  through 
the  agency  of  the  specific  power  granted  to  the  General  Assembly 
by  constitutional  provision  to  frame  and  submit  proposed  amend- 
ments, which  is  considered  preferable,  when  no  extensive  change  in 
the  organic  law  is  proposed.4 

The  extraconstitutional  legality  of  such  conventions  has  al- 
ready been  discussed  in  Chapter  IV. 

Thus  the  Indiana  decision  appears  to  have  established  the 
law  that  the  legislature  has  no  authority  to  resolve  itself  into  a 
constitutional  convention.       < 

But  this  law  is  likely  soon  to  be  upset  by  precedent  in  the 
neighboring  State  of  North  Dakota.  There,  the  present  con- 
stitution requires  amendments  to  be  twice  passed  by  the  legisla- 

1  Ellingham  v.  Dye  (1912),  178  Ind.  336,  357. 

8  Ellingham  v.  Dye  (1912),  178  Ind.  336,  360-361. 

*  Ellingham  v.  Dye  (1912),  178  Ind.  336,  355. 


86  CONSTITUTIONAL  CONVENTIONS 

ture  before  submission  to  the  people;1  yet  at  the  last  session 
the  majority  party  (i.e.  the  Farmers'  Nonpartisan  League) 
introduced  a  bill  for  the  immediate  submission  of  a  complete 
new  constitution,  embodying  the  reforms  pledged  by  the 
Farmers'  platform.2  This  bill  passed  the  House,  but  was  blocked 
by  the  hold-over  members  of  the  Senate.  If,  as  now  seems  possi- 
ble, the  Farmers  gain  control  of  both  Houses  at  the  next  elec- 
tion, the  bill  will  be  adopted,  and  will  undoubtedly  be  sustained 
by  the  Supreme  Court,  which  is  now  dominated  by  the  Farmers. 

Thus,  until  we  learn  the  result  of  the  North  Dakota  experi- 
ment, the  Indiana  decision  must  remain  open,  especially  as  it 
was  made  by  a  court  of  the  opposite  political  party  than  the 
party  which  at  the  time  controlled  the  legislature.3 

In  this  connection  it  is  interesting  to  compare  the  following 
from  a  recent  opinion  by  the  Attorney-General  of  North 
Dakota: 

An  examination  of  our  State  and  Federal  Constitutions  shows 
that  no  procedure  for  revision  or  for  the  adoption  of  a  new  State 
Constitution,  as  an  organic  whole,  is  provided  for. 

The  Constitution  of  North  Dakota,  Section  2,  however,  does 
contain  the  following  declaration: 

"All  political  power  is  inherent  in  the  people.  Government  is 
instituted  for  the  protection,  security  and  benefit  of  the  people; 
and  they  have  the  right  to  alter  or  reform  the  same  whenever 
the  public  good  may  require." 

Moreover,  in  our  system  of  government,  constitutions  derive 
their  power  from  the  people,  not  the  people  from  constitutions. 
The  rights  and  powers  of  the  people  existed  before  a  constitution 
was  formed.  In  other  words,  before  the  establishment  of  a  con- 
stitution, the  people  possessed  sovereign  power. 

That  power  they  still  possess,  except  in  so  far  as  they  may  have 
delegated  it  to  State  or  National  Governments,  or  have  volun- 
tarily restricted  themselves  in  its  exercise  under  their  constitu- 
tions. 

Many  of  our  states  have  adopted  express  methods  of  revising 
their  constitutions  through  constitutional  conventions.    However, 

1  N.  Dak.  Const.,  Art.  XV,  §  202. 

8  1917,  N.  D.  House  Bill  44. 

>  VI  "Am.  Polit.  Sci.  Rev.,"  43, 44. 


LEGISLATURES  AS  CONVENTIONS  87 

for  generations,  many  states  had  no  express  method  of  revision,  and 
at  least  a  dozen  states,  North  Dakota  being  among  them,  have 
none  today. 

It  is  urged  that,  since  our  Constitution  provides  a  method  of 
amendment,  by  exclusion  the  Legislature  is  prohibited  from 
initiating  a  revision  itself  by  drafting  a  new  Constitution.  This 
argument  is  untenable  when  dealing  with  sovereignty  of  the  people 
seeking  expression  through  revision.  It  is  an  instance  where  the 
ordinary  doctrine  of  exclusion  applicable  to  contracts  is  not  binding. 
Moreover,  if  such  an  argument  were  applicable  to  legislative  revi- 
sion it  would  be  equally  applicable  to  revision  by  convention, 
and  on  that  subject  our  own  Supreme  Court,  in  68  N.  W.  421 
(N.  D.),  has  said: 

"The  decided  weight  of  authority  and  the  more  numerous 
precedents  are  arrayed  on  the  side  of  the  doctrine  which  supports 
the  existence  of  this  inherent  legislative  power  to  call  a  constitu- 
tional convention,  notwithstanding  the  fact  that  the  instrument 
itself  points  out  how  it  may  be  amended." 

The  sovereign  power  of  revision  having  reached  the  threshold 
of  the  legislature  without  express  written  authority  and  solely  by 
its  irresistible  right  to  expression,  what  mysterious  power  can 
then,  without  vestige  of  authority,  assume  the  right  to  bridle  it 
and  lead  it  tamely  down  the  narrow,  though  highly  respectable, 
avenue  of  revision  by  convention? 

In  my  opinion  any  method  followed  by  the  legislature  in  placing 
before  the  people  a  new  constitution  for  adoption  or  rejection  in  their 
sovereign  capacity  is  legal.1 

He  differentiates  the  Indiana  case  as  follows: 

In  connection  with  this  I  will  also  say  that  the  case  of  Ellingham 
vs.  Dye,  99  N.  E.  1,  apparently  opposed  to  the  legality  of  legislative 
revision,  is  clearly  not  applicable  to  the  situation  in  this  State,  owing 
to  an  unusual  and,  perhaps,  entirely  unique  occurrence  in  the  history 
of  Indiana  when  the  provisions  for  revision  contained  in  the 
Indiana  constitution  up  to  1851  were  then  stricken  out  with  the 
express  intention  that  never  again  would  the  Indiana  constitution 
be  revised,  but  only  changed  by  amendment.2 

1  No.  Dak.  House  Journal  for  Jan.  26,  1917. 

2  No.  Dak.  House  Journal  for  Jan.  26,  1917. 


88  CONSTITUTIONAL  CONVENTIONS 

Whatever  may  be  said  for  the  correctness  of  his  differentiation, 
the  fact  remains  that  in  his  main  argument  he  overlooks  two 
points:  (1)  that  the  legislature  having  probably  no  power  to 
call  a  convention  without  popular  permission,1  a  fortiori  has 
no  power  to  call  itself  a  convention  without  such  permission; 
and  (2)  that  his  citations,  not  given  above,  on  the  power  of  the 
legislature  to  submit  a  whole  constitution,  relate  to  submission 
in  the  regular  constitutional  manner,  and  not  irregularly  as 
attempted  in  Indiana  and  North  Dakota.2 

Nevertheless,  as  already  suggested,  it  would  be  well  to  await 
the  success  of  the  North  Dakota  experiment  before  definitely 
passing  upon  the  subject  matter  of  this  chapter. 

1  See  pp.  62-65,  supra.  *  Dodd,  pp.  260-261. 


Chapter  VII 

EXECUTIVE  INTERVENTION 

The  question  of  the  power  of  one  of  these  departments  to 
interfere  with  a  convention  largely  depends  upon  a  determina- 
tion of  the  exact  status  of  the  convention.  Regardless  of  whether 
or  not  the  convention  is  revolutionary,  there  can  be  no  doubt 
that,  either  with  or  without  constitutional  sanction,  the  conven- 
tion has  become  established  as  a  regular  organ  of  American 
government.  The  separation  of  the  departments  of  government 
is  a  fundamental  principle  of  American  constitutional  law. 
Nearly  all  of  our  constitutions  lay  down  the  rule  that: 

The  legislative  department  shall  never  exercise  the  executive 
and  judicial  powers,  or  either  of  them;  the  executive  shall  never 
exercise  the  legislative  and  judicial  powers,  or  either  of  them; 
the  judicial  shall  never  exercise  the  legislative  and  executive  pow- 
ers, or  either  of  them.1 

And  not  only  may  no  department  exercise  the  powers  of  any 
other,  but  each  department  is  also,  forbidden  to  interfere  with 
the  functions  of  any  other. 

This  is  important  in  connection  with  Dodd's  theory  as  to  the 
relation  which  the  convention  bears  to  the  three  regular  de- 
partments.   He  says: 

The  better  view  would  seem  to  be  that  the  convention  is  a 
regular  organ  of  the  state  (although  as  a  rule  called  only  at  long 
intervals)  —  neither  sovereign  nor  subordinate  to  the  legislature.2 

The  following  quotations  from  various  authorities  sustain 
this  view: 

_  But  a  rather  better  view,  less  extreme  than  either  of  the  pre- 
ceding ones,  regards  the  convention  as  a  regular  organ  of  the 
existing  government  coordinate  with  the  other  branches.    In  its 

1  Mass.  Decl.  of  Rts.,  Art.  XXX.  2  Dodd,  p.  80. 


90  CONSTITUTIONAL  CONVENTIONS 

sphere  of  constitution  making  it  should  be  supreme,  subject  only 
to  limitation  by  the  people.1 

The  convention  is  an  independent  and  sovereign  body  whose 
sole  power  and  duty  are  to  prepare  and  submit  to  the  people  a 
revision  of  the  constitution,  or  a  new  constitution  to  take  the 
place  of  an  old  one.2 

Nothing  could  conduce  more  to  simplicity  of  view,  than  to  con- 
sider this  institution  as  a  branch  of  that  system  by  which  the  state, 
considered  as  a  political  society,  works  out  its  will  in  relation  both 
to  itself  and  to  the  citizens  of  which  it  is  composed.  And  this 
...  I  am  satisfied  is  the  correct  view  to  take  of  the  question.3 

A  Constitutional  Convention  is  a  legislative  body  of  the  high- 
est order.  It  proceeds  by  legislative  methods.  Its  acts  are  legis- 
lative acts.  Its  function  is  not  to  execute  or  interpret  laws,  but 
to  make  them.  That  the  consent  of  the  general  body  of  electors 
may  be  necessary  to  give  effect  to  the  ordinances  of  the  Conven- 
tion, no  more  changes  their  legislative  character,  than  the  re- 
quirement of  the  Governor's  consent  changes  the  nature  of  the 
action  of  the  Senate  and  Assembly.4 

It  is  the  highest  legislative  body  known  to  freemen  in  a  repre- 
sentative government.5 

It  is  of  the  greatest  importance  that  a  body  chosen  by  the  people 
of  this  state  to  revise  the  organic  law  of  the  state,  should  be  as 
free  from  interference  from  the  several  departments  of  government, 
as  the  legislative,  executive  and  judiciary  are,  from  interference  by 
each  other.6 

The  only  authority  contra  appears  to  be  the  Supreme  Court 
of  Pennsylvania,  which  has  said: 

The  convention  is  not  a  co-ordinate  branch  of  the  government. 
It  exercises  no  governmental  power,  but  is  a  body  raised  by  law 
in  aid  of  the  popular  desire  to  discuss  and  propose  amendments.7 

i  XXIX  "Harv.  Law  Rev.,"  520. 

2  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  340. 

*  Jameson,  p.  315.  Compare  the  quotation  from  Jameson,  pp.  319-320,  on 
p.  187,  infra.     And  compare  Jameson,  pp.  23-24. 

4  Report  of  Judiciary  Committee,  headed  by  Elihu  Root,  and  unanimously 
adopted  by  the  Convention.    Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  245. 

6  Sproule  v.  Fredericks  (1898),  69  Miss.  898,  904. 

6  Report  of  Judiciary  Committee,  headed  by  Elihu  Root,  and  unanimously 
adopted  by  the  Convention.  Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  250. 
Quoted  with  approval  in  Deb.  Mich.  Conv.  1907-1908,  p.  1275. 

7  Wells  v.  Bain  (1872),  75  Pa.  39,  57. 


EXECUTIVE  INTERVENTION  91 

Thus  the  weight  of  authority  is  to  the  effect  that  the  conven- 
tion, when  in  session,  is  a  fourth  branch  of  the  government,  with 
the  same  immunity  from  interference  as  that  possessed  by  the 
other  three.  The  executive  and  judiciary  have  no  more  right  to 
interfere  with  the  fourth  branch  than  they  do  with  the  other 
legislative  branch,  namely,  the  legislature.  The  legislature  has 
no  right  to  interfere  with  a  legislative  body  of  higher  standing. 

Let  us  now  consider  intervention  by  the  executive  depart- 
ment, either  of  the  state  or  nation.  The  converse  question, 
i.  e.  the  power  of  the  convention  to  interfere  in  the  affairs  of  the 
executive  department,  will  be  considered  in  a  later  chapter.1 

First,  with  respect  to  the  State  executive.  By  this  is  meant 
the  chief  executive,  i.  e.  the  Governor,  or  the  Governor  acting 
with  the  consent  and  assistance  of  some  advisory  body. 

The  executive  branch,  like  the  other  two  branches,  derives 
its  delegated  authority  entirely  from  the  constitution,  and  has 
no  powers  except  those  expressly  or  impliedly  granted  therein, 
and  no  powers  even  when  granted,  if  they  are  such  as  to  be  be- 
yond the  power  of  the  constitution  to  grant.  This  must  be 
borne  in  mind  throughout  this  chapter. 

The  first  manner  in  which  a  governor  might  interfere  with  a 
convention  would  be  to  prevent  the  holding  of  a  convention  by 
vetoing  the  convention  act. 

Under  the  initiative  and  referendum,  in  all  the  States  in 
which  it  is  in  force,2  a  convention  initiated  by  the  people  would 
not  be  subject  to  executive  veto,  as  the  constitutions  of  those 
States  do  not  authorize  such  a  veto. 

With  respect  to  conventions  expressly  called  by  the  con- 
stitution, or  conventions  the  call  for  which  is  submitted  to  the 
people  by  the  constitution  without  legislative  action,  it  is  like- 
wise clear  that  there  is  no  way  in  which  the  Governor  could 
veto  the  project. 

With  respect  to  constitutions  which  authorize  the  passage  of 
conventions  acts,  the  results  differ  in  different  States.  In 
Alabama  and  Delaware  the  convention  act  need  not  be  sub- 
mitted to  the  Governor  for  his  approval,  and  is  expressly  de- 

1  Chapter  XI,  infra. 

2  Namely  Arizona,  Arkansas,  California,  Colorado,  Michigan,  Missouri, 
Nebraska,  Nevada,  North  Dakota,  Ohio,  Oklahoma,  Oregon,  Idaho,  Maine, 
Montana,  South  Dakota,  Utah,  and  Washington.    "  Columbia  Digest,"  p.  771. 


92  CONSTITUTIONAL  CONVENTIONS 

clared  to  be  valid  without  his  approval.1  No  other  constitutions 
make  express  provision  in  this  connection,  but  it  would  appear 
that  an  act  of  the  legislature  calling  for  a  popular  vote  would 
not  be  subject  to  veto,  no  veto  power  being  mentioned  in  this 
connection;  although  a  legislative  act  providing  for  the  details 
of  holding  the  convention,  if  regarded  as  ordinary  legislation, 
would  be  subject  to  the  regular  veto  power  of  the  Governor.2 

The  usual  practice  in  such  States  has  been  to  submit  to  the 
people  the  question  of  holding  a  convention;  without  asking 
for  the  Governor's  approval.  This  would  naturally  follow  from 
the  fact  that  a  convention  act  is  not  a  bit  of  ordinary  legislation. 

It  does  not  require  the  approval  of  the  governor  to  make  it 
valid.3 

Yet  in  Nebraska,  which  is  a  State  of  this  sort,  and  where 
therefore  the  submission  of  this  question  to  a  popular  vote 
would  seem  to  be  clearly  within  the  power  of  the  legislature, 
independent  of  the  Governor,  a  joint  resolution  in  1903  upon 
this  subject  was  vetoed  by  the  Governor,  and  no  further  action 
was  taken.4 

In  New  York,  the  Governor  by  quarreling  with  the  legislature, 
postponed  for  eight  years  the  holding  of  the  convention  au- 
thorized by  a  popular  vote  in  1886.5 

But  although  the  executive  veto  of  an  act  to  take  the  sense  of 
the  people  has  been  successfully  employed  on  these  occasions, 
yet  executive  approval  is  usually  dispensed  with.  What  author- 
ity there  is  sustains  this  custom,  which  thus  has  the  support 
of  the  weight  of  both  judicial  and  actual  precedent. 

In  the  absence  of  constitutional  provisions  authorizing  the 
holding  of  a  convention,  we  have  seen  that  the  people  require 
the  assistance  of  the  legislature  in  order  to  express  their  will 
on  the  subject,  yet  the  act  rendering  this  assistance  is  not 
strictly  legislative  in  its  nature.  Thus,  although  it  is  customary 
to  refer  such  an  act  to  the  Governor  for  his  approval,  this  has 
been  held  to  be  unnecessary: 

1  Ala.  Const.,  XVIII,  286;  Del.  Const.,  XVI,  2,  4. 

2  Dodd,  p.  56,  n.  55. 

3  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  341. 

4  Dodd,  p.  57,  n.  55. 
6  Dodd,  p.  55. 


EXECUTIVE  INTERVENTION  93 

That  it  did  not  take  the  form  of  an  ordinary  law  is  too  clear  for 
controversy.  The  joint  resolution  has  no  title.  Its  enacting  clause 
is  not  couched  in  the  language  prescribed  by  the  constitution  to  be 
employed  in  the  enactment  of  ordinary  laws ;  nor  was  it  ever  submit- 
ted to  the  governor  for  approval.  Whenever  it  is  necessary  that 
the  expression  of  sovereign  will  should  take  the  form  of  ordinary 
legislation,  these  requirements  must  be  strictly  observed.  But, 
in  declaring  its  purpose  that  a  specific  proposition  should  be 
submitted  to  the  people  for  their  approval  or  disapproval,  the 
legislature  is  not  discharging  the  ordinary  function  of  enacting 
laws.1 

If  the  people,  by  voting  to  have  a  convention,  thereby  im- 
pliedly authorize  the  legislature  to  enact  details,2  such  authori- 
zation may  well  be  on  the  same  plane  with  an  authorization 
contained  in  the  constitution  and  hence  justify  the  submission 
of  such  acts  to  the  Governor.    This  is  the  general  practice. 

Thus  it  is  seen  that  the  Governor  can  prevent  the  holding  of 
a  convention  by  vetoing  the  legislative  act  providing  for  the 
details  of  a  convention.  The  Governor,  however,  has  no  power 
to  prevent  the  holding  of  a  convention  called  under  the  popular 
initiative,  or  provided  for  by  the  constitution  in  a  maimer  which 
does  not  allow  legislative  interference. 

All  of  the  foregoing  sorts  of  interference  by  the  Governor 
are  seen  to  be  really  a  part  of  his  legislative  power,  rather  than 
of  his  executive  power. 

Whenever  a  legislature  would  have  power  to  interfere  by 
inaction  with  the  holding  of  a  constitutional  convention,3  the 
Governor  probably  possesses  a  coextensive  power  to  interfere 
by  vetoing  legislative  action. 

The  Governor,  in  his  executive  capacity,  however,  can  assume 
a  very  important  role,  in  case  the  legitimacy  of  the  convention 
or  of  any  of  its  actions  comes  into  dispute.  In  the  case  of  two 
conflicting  sets  of  claimants  to  office  in  any  department,  one 
set  claiming  under  the  old  constitution  and  the  other  set  claim- 
ing under  the  new,  the  Governor  and  the  other  executive  officers 
who  have  control  of  the  State  finances  may  be  in  a  position, 
by  the  giving  or  withholding  of  salaries,  to  determine  effectually 
which  set  of  officers  is  legal. 

1  State  v.  Dahl  (1896),  6  N.  D.  81,  82. 

2  See  p.  72,  supra.  3  See  pp.  116-117,  infra. 


94  CONSTITUTIONAL  CONVENTIONS 

So,  too,  in  jurisdictions  where  the  courts  consider  the  legality 
of  the  acts  of  a  popular  convention  to  be  a  political  rather  than 
a  judicial  question,1  the  recognition  or  nonrecognition  of  the 
new  constitution  by  the  Governor  may  be  the  deciding  point 
in  determining  its  validity  or  invalidity. 

Braxton  says  that  any  act  of  the  existing  government  in 
recognition  of  an  irregular  constitutional  change  should  be 
regarded  as  acquiescence  and  ratification  on  the  part  of  the 
people.2 

Thus  the  Military  Governor  of  Tennessee,  acting  on  the 
authority  of  the  President,  ratified  the  constitution  which  had 
been  submitted  by  the  purely  spontaneous  convention  of  1865.3 

The  Federal  executive  can  very  often  determine  whether  a 
convention  is  valid  or  merely  factional.  The  clauses  of  the 
Federal  constitution  guaranteeing  to  each  State  a  republican 
form  of  government  and  permitting  the  President  to  maintain 
order  in  any  State  if  requested  by  the  State  legislature  or  by 
the  State  executive  if  the  legislature  is  not  in  session,4  give  the 
President  the  power  to  interfere  with  a  constitutional  con- 
vention. 

The  power  of  deciding  whether  the  exigency  has  arisen  upon 
which  the  government  of  the  United  States  is  bound  to  interfere,  is 
given  to  the  President.  He  is  to  act  upon  the  application  of  the 
legislature  or  of  the  executive,  and  consequently  he  must  determine 
what  body  of  men  constitute  the  legislature,  and  who  is  the  gover- 
nor, before  he  can  act.  The  fact  that  both  parties  claim  the  right 
to  the  government  cannot  alter  the  case,  for  both  cannot  be  entitled 
to  it.  If  there  is  an  armed  conflict,  like  the  one  of  which  we  are 
speaking,  it  is  a  case  of  domestic  violence,  and  one  of  the  parties 
must  be  in  insurrection  against  the  lawful  government.  And  the 
President  must,  of  necessity,  decide  which  is  the  government  and 
which  party  is  unlawfully  arrayed  against  it,  before  he  can  per- 
form the  duty  imposed  upon  him  by  the  act  of  Congress.5 

On  two  occasions  the  President  of  the  United  States  has 
interfered  to  decide  whether  the  government  of  a  State  was 
valid  or  factional.     In  the  case  of  Rhode  Island,  as  pointed 

1  See  pp.  162-163,  infra. 

2  VII  "  Va.  Law  Reg.,"  79,  97. 

3  Ridley  v.  Sherbrook  (1866),  43  Tenn.  569,  577. 

4  U.  S.  Const.,  Art.  IV,  §  4. 

5  Luther  v.  Borden  (1849),  7  How.  1,  43. 


EXECUTIVE   INTERVENTION  95 

out  in  the  foregoing  quotation,  the  President  acting  on  the 
application  of  one  of  the  two  claimants  of  the  governorship, 
who  incidentally  was  a  member  of  his  own  political  party, 
recognized  him  as  the  executive  of  the  State  and  took  measures 
to  call  out  the  militia  to  support  his  authority.  Thus  President 
Tyler  upset  the  People's  Constitution  of  1841  in  Rhode  Island.1 
On  the  other  hand,  President  Lincoln  gave  validity  to  the 
extremely  factional  loyal  government  of  Virginia  by  recognizing 
it  as  the  lawful  government  of  that  State.  This  recognition  is 
all  that  gives  validity  to  the  dismemberment  of  that  State 
and  the  creation  of  West  Virginia. 

The  repeated  acts  of  the  United  States  in  all  its  departments, 
recognizing  the  loyal  government  of  Virginia  of  which  the  legislature 
in  question  was  a  part,  as  an  existing  State  government,  stamped 
that  government  and  legislature  as  legal  and  valid.  For  over  four 
years  after  the  establishment  of  the  loyal  government  of  Virginia, 
the  President  of  the  United  States  was  engaged,  in  concert  with  that 
government,  in  expelling  from  her  borders  the  rebel  invaders.2 

These  two  instances  demonstrate  not  only  the  power  of  the 
Federal  executive,  but  also  the  power  of  the  state  executive. 
In  one  case  it  was  the  Governor  under  the  old  regime,  and  in  the 
other  the  Governor  under  the  new  regime  that  took  the  steps 
to  secure  intervention  by  the  President  of  the  United  States. 

It  should  be  noted,  however,  that  the  President  has  no  power, 
under  the  constitution,  to  intervene  in  the  internal  affairs  of 
a  State  except  upon  the  request  of -some  one  claiming  to  be  the 
State  government. 

The  two  objects  for  which  the  Federal  government  may 
intervene  are  to  protect  the  State  against  internal  violence,  and 
to  guarantee  to  the  State  a  republican  form  of  government. 

If  the  intervention  is  for  the  purpose  of  protecting  the  State 
from  internal  violence,  the  express  terms  of  the  constitution 
provide  that  such  protection  shall  be  furnished  only  "on 
application  of  the  Legislature,  or  of  the  executive  (when  the 
Legislature  cannot  be  convened)." 3 

In  the  case  of  intervention  for  the  purpose  of  guaranteeing 

1  See  pp.  21-22,  supra,  on  "Dorr's  Rebellion." 

2  Jameson,  p.  172. 

*  U.  S.  Const.,  Art.  IV,  §  4. 


96  CONSTITUTIONAL  CONVENTIONS 

a  republican  form  of  government,  this  requirement  of  a  request 
is  not  so  clear,  not  being  expressly  mentioned. 
Thus  Braxton  suggests: 

If  any  State  of  the  American  Union  should  attempt  to  lay 
aside  its  republican  form  of  government,  and  substitute  in  its 
stead  that  of  an  irresponsible,  omnipotent  Convention,  combining 
in  itself  all  the  powers  of  Government,  (Legislature,  Judicial  and 
Executive,)  even  for  a  single  day,  it  would  clearly  be  ground  for 
the  forcible  intervention  of  the  Federal  authority,  to  put  down 
and  stamp  out  a  government  so  foreign  to  all  ideas  of  a  free 
republic.1 

But  it  is  arguable  that  this  clause,  too,  is  for  the  protection 
of  the  States,  and  cannot  be  invoked  unless  a  State  itself 
requests  it. 

Thus  we  see  that  in  some  instances  executives  can  prevent 
the  holding  of  a  convention  and  in  some  instances  ratify  or 
nullify  its  action,  but  there  has  been  no  way  suggested  in  which 
an  executive  may,  pending  a  conventional  change,  interfere 
with  the  details  of  the  convention  procedure. 

i  VII  "  Va.  Law  Reg.,"  79,  91. 


Chapter  VIII 
THE  CONVENTION  ACT  NOT  AMENDABLE 

Judge  Jameson's  book  on  constitutional  conventions  was 
written  for  the  sole  purpose  of  proving  the  supremacy  of  the 
legislature  over  the  convention.  He  treated  the  question  of 
the  power  of  the  legislature  to  amend  the  statute  calling  a  con- 
vention as  being  merely  a  question  of  the  right  of  the  legisla- 
ture to  control  the  convention;  whereas  in  reality  it  involves 
three  questions:  i.e.,  the  power  of  the  legislature,  the  source 
of  the  statute,  and  whether  the  legislature  can  amend  an  act 
passed  by  the  people. 

The  first  of  these  three  questions,  namely,  whether  the 
legislature  can  control  the  convention,  will  be  considered  in 
the  next  chapter.  In  that  consideration  we  shall  see  that 
restrictions,  which  the  legislature  attempts  to  impose  upon  a 
convention,  are  probably  not  binding  unless  ratified  by  the 
people;  precedents  to  the  contrary  being  divisible  into  cases 
in  which  the  electorate  did  the  restricting,  cases  in  which  the 
restrictions  were  acceptable  to  the  convention,  and  cases  in 
which  the  restrictions  were  imposed  by  an  outside  sovereign. 
The  instances,  there  discussed,  of  legislative  interference  by 
other  means  than  the  original  convention  act  or  amendments 
thereto  do  not  concern  us  here. 

The  second  of  the  three  involved  questions  was  considered  in 
Chapter  V.  There  we  saw  that  the  people  enact  the  convention 
act  where  they  have  the  initiative,  or  where  the  legislature  sub- 
mits the  entire  act  to  them  for  ratification;  probably,  where  they 
vote  to  hold  a  convention  under  the  act;  and  possibly,  where 
they  merely  elect  delegates  under  the  act,  or  where  they  ac- 
quiesce in  an  act  by  not  invoking  the  referendum  against  it. 
It  is  possible  that  even  constitution  provisions  for  the  holding  of 
a  convention  become  popular  enactments  because  the  people 
act  under  them,  either  by  voting  for  the  convention,  or  even 
merely  by  voting  for  delegates. 


98  CONSTITUTIONAL  CONVENTIONS 

The  present  chapter  will  be  devoted  to  the  third  question 
involved,  namely,  whether  the  legislature  can  amend  an  act 
of  this  sort,  assuming  it  to  have  been  passed  by  the  people. 

Where  the  facts  show,  or  judicial  decisions  hold,  that  the  con- 
vention act  was  passed  by  the  legislature,  the  legislature  clearly 
has  the  power  to  amend  this  act;  unless  we  adopt  the  theory  of 
the  Pennsylvania  Supreme  Court,  already  discussed,1  to  the 
effect  that  the  mere  participation  by  the  people  in  the  election 
of  delegates  under  a  convention  act  passed  by  the  legislature 
alone  amounts  to  a  ratification  and  adoption  of  that  act  by  the 
people,  and  makes  it  the  act  of  the  people  rather  than  of  the 
legislature.  Under  that  theory,  all  convention  acts  would  owe 
their  force  and  validity  to  a  popular  vote,  unless  we  can  assume 
the  case  of  a  convention  with  delegates  which  are  chosen  by  the 
legislature.2 

This  leads  us  to  the  main  question  to  be  considered  in  this 
chapter:  namely,  whether,  if  the  people  enacted  the  conven- 
tion act,  the  legislature  can  amend  it. 

In  order  to  present  this  sole  question,  without  any  diverting 
complications,  we  must  assume:  (1)  that  the  people  did  origi- 
nally pass  the  convention  act  in  its  entirety,3  and  (2)  that  the 
matter  which  the  legislature  proposes  now  to  add  to  it  is  matter 
within  the  scope  of  ordinary  legislative  powers.4  Let  us  there- 
fore make  these  two  assumptions,  merely,  however,  for  the 
purposes  of  this  chapter. 

A  discussion  of  the  main  subject  has  usually  been  very  much 
involved  in  a  consideration  of  the  other  two,  which  we  are  here 
attempting  to  exclude.  An  attempt  will  be  made,  however,  to 
select  for  the  purposes  of  this  chapter  so  much  of  the  authorities 
as  relates  solely  to  the  subject  matter  of  this  chapter. 

The  clearest  statement  on  this  subject  is  contained  in  the 
opinion  rendered  by  the  New  York  Supreme  Court  to  the  69th 
New  York  Assembly  in  1846.    It  is  as  follows: 

1  See  p.  72,  supra. 

2  This  was  the  case  with  respect  to  the  first  of  the  two  Georgia  conventions 
in  1788.  Jameson,  p.  135.  Constitutional  commissions  may  perhaps  be  re- 
garded as  such  conventions.    Dodd,  pp.  262-265. 

3  See  Chapter  V,  supra. 

4  This  assumption  is  incorrect  (see  pp.  62-65,  supra),  but  must  be  postu- 
lated for  the  purposes  of  the  present  argument.  If  the  argument  fails  (as  it  does) 
even  with  this  assumption,  a  fortiori  when  this  assumption  is  found  to  be 
incorrect. 


THE  CONVENTION  ACT  NOT  AMENDABLE  99 

The  next  question  is,  "Whether  this  legislature  has  any  power  to 
alter  or  amend  that  law."  As  a  general  rule,  the  legislature  can 
alter  or  annul  any  law  which  it  has  power  to  pass.  A  proper 
solution  of  the  question  proposed  by  the  Assembly  involves, 
therefore,  an  inquiry  concerning  the  source  from  which  the  act  of 
1845  derives  its  obligation. 

If  the  Act  of  the  last  session  is  not  a  law  of  the  legislature, 
but  a  law  made  by  the  people  themselves,  the  conclusion  is  obvious, 
that,  the  legislature  cannot  annul  it,  nor  make  any  substantial 
change  in  its  provisions.  If  the  legislature  can  alter  the  rule  of 
representation,  it  can  repeal  the  law  altogether,  and  thus  defeat 
a  measure  which  has  been  willed  by  a  higher  power.1 

Another  expression  of  opinion  to  the  same  effect  is  as  follows: 

In  ascertaining  the  powers  of  the  Convention,  we  cannot  look 
to  the  Act  of  February,  1901,  passed  after  the  Convention  had  been 
ordered  by  the  People;  and  that  the  limitations  imposed  by  that 
Act,  which  was  never  submitted  to,  nor  ratified  by  the  People,  are 
of  no  binding  force.2 

The  author  knows  of  no  decisions  or  court  opinions  contra. 
The  recent  opinion  of  the  Supreme  Court  of  Massachusetts, 
although  it  appears  to  support  the  author's  proposition,  is 
not  in  reality  in  point,  for  the  ground  on  which  it  declares  the 
particular  convention  act  to  be  unamendable,  is  merely  the 
unconstitutionality  of  the  particular  subject  matter.3 

Jameson  has  collected  a  number  of  decisions  to  the  effect 
that  the  legislature  may  amend  statutes  which  have  been  sub- 
mitted to  the  people  for  a  vote.4  This  is  undoubted  law.  But 
we  should  note:  (1)  that  none  of  these  decisions  related  to  con- 
vention acts,  and  (2)  that  convention  acts  are  not  an  exercise 
of  ordinary  legislative  power.5  These  two  considerations  should 
be  sufficient  to  differentiate  the  cases  cited  by  Jameson. 

If  Jameson  had  lived  in  the  days  of  the  initiative  and  refer- 
endum, he  might  well  have  added  cases  like  the  following: 

1  Journal,  69th  N.  Y.  Assembly,  pp.  919  and  920. 

2  Braxton,  VII  "  Va.  Law  Reg.,"  100,  101-102. 

3  1917,  Mass.  Senate  Doc.,  512. 

4  Jameson,  pp.  398-401. 

6  See  pp.  62-65,  80-83,  supra. 


100  CONSTITUTIONAL  CONVENTIONS 

The  Supreme  Court  of  every  state  having  an  initiative  and 
referendum  constitutional  provision  similar  to  that  of  this  state 
which  has  been  called  upon  to  determine  the  question  has  held  that 
the  Legislature  has  the  power/to  repeal  or  amend  the  initiated 
law.1 

But  in  these  cases,  the  powers  of  the  legislature  to  amend 
are  always  expressly  based  upon  the  theory  that  the  people, 
in  initiating  legislation,  are  merely  exercising  the  legislative 
function  which  for  ordinary  occasions  they  have  delegated  to 
the  legislature.  Ratione  cessante,  cessat  ipsa  lex.  A  conven- 
tion act,  not  being  within  the  legislative  function,2  it  is  not  so 
amendable.  In  fact,  as  the  extralegislative  power  which  the 
legislature  has  to  frame  a  convention  act  exists  only  ex  neces- 
sitate? it  is  probable  that  this  power  does  not  exist  in  States 
which  have  adopted  the  initiative  and  referendum.  Thus 
neither  the  cases  cited  by  Jameson,  nor  the  more  modern  cases 
arising  under  the  initiative  and  referendum  are  authority  for 
the  proposition  that  the  legislature  can  amend  a  convention 
act. 

The  author  has  been  unable  to  find  any  authorities  which 
express  an  opinion  that  the  legislature  may  amend  a  convention 
act,  if  originally  enacted  by  the  people;  and  it  is  possible  that, 
in  the  cases  in  which  legislatures  have  actually  amended  con- 
vention acts,  they  have  proceeded  upon  the  theory  that  such 
acts  were  not  enacted  by  the  people,  rather  than  upon  the 
theory  that,  although  the  people  had  enacted  them,  the  legisla- 
ture could  amend  them.  Even  when  the  legislature  has  passed 
the  original  convention  act  after  the  popular  vote  authorizing 
the  convention,  it  is  arguable  that  the  people  choose  the  legis- 
lature as  their  agent  for  the  special  extralegislative  purpose 
of  framing  the  convention  act,4  and  that  when  this  purpose  is 
fulfilled,  the  legislature  becomes  quoad  hoc,  functus  officio. 
In  plain  English,  the  job  being  completed,  the  legislature  has 
no  further  powers  in  that  connection. 

In  the  following  described  cases,  convention  acts  have  been 
amended  by  legislatures. 

1  Richards  v.  Whitman  (1915),  36  S.  D.  260,  272. 

2  See  pp.  62-65,  80-83,  supra. 
8  See  p.  47,  supra. 

4  See  pp.  73-74,  supra. 


THE  CONVENTION  ACT  NOT  AMENDABLE         ,     ,     ,    101 

New  York  Assembly  of  1845  passed  aJ  statute  for  the  holding 
of  a  convention  in  a  certain  detailed  manner,  if  the  people 
should  so  vote  at  the  next  election.  The  people  so  voted.  The 
Assembly  of  1846  then  proceeded  to  amend  the  convention  act, 
so  as  to  change  the  system  of  apportionment  of  delegates. 
But  before  doing  this,  they  asked  the  opinion  of  the  Supreme 
Court  of  that  State  as  to  whether  they  had  the  power  to  do  so. 

The  court  replied  that  the  convention  act  was  the  act  of  the 
people,  and  that  therefore  the  legislature  had  no  power  to 
amend  it.  The  court's  language  in  this  connection  has  been 
given  earlier  in  this  chapter.1  The  legislature,  however,  dis- 
regarded the  advice  of  the  court  and  amended  the  act,  and  the 
delegates  to  the  convention  were  elected  under  the  act  as 
amended.2 

The  validity  of  this  action  by  the  legislature  was  never  ques- 
tioned by  the  convention.  But  this  is  not  to  be  wondered  at; 
for  had  the  delegates  declared  this  action  to  be  illegal,  they 
would  thereby  have  declared  their  own  election  illegal,  and  their 
own  seats  vacant,  and  would  have  thus  rendered  themselves 
incompetent  to  make  the  very  decision  which  they  were  making. 
The  only  tenable  decision  which  the  delegates  could  make  was 
to  sustain  the  validity  of  the  act  under  which  they  had  obtained 
their  seats. 

A  similar  situation  was  pointed  out  by  the  United  States 
Supreme  Court  when  it  held  that  ..the  only  possible  tenable 
decision  by  a  state  court  would  be  to  uphold  the  legality  of 
the  constitution  under  which  the  judges  themselves  held  their 
seats.  The  language  of  the  court  in  this  connection  is  as 
follows: 

And  if  a  State  court  should  enter  upon  the  inquiry  proposed  in 
this  case,  and  should  come  to  the  conclusion  that  the  government 
under  which  it  acted  had  been  put  aside  and  displaced  by  an 
opposing  government,  it  would  cease  to  be  a  court,  and  be  incap- 
able of  pronouncing  a  judicial  decision  upon  the  question  it  under- 
took to  try.  If  it  decides  at  all  as  a  court,  it  necessarily  affirms  the 
existence  and  authority  of  the  government  under  which  it  is 
exercising  judicial  power.3 

1  See  p.  99,  supra. 

2  Jameson,  p.  387. 

3  Luther  v.  Borden  (1849),  7  How.  1, 40.  Compare  the  cases  quoted,  pp.  157- 
158,  infra. 


102  CONSTITUTIONAL  CONVENTIONS 

Not  only  was  this  action  by  the  New  York  Assembly 
never  questioned  by  the  convention;  it  was  never  questioned  at 
all.  Thus  here  we  have  a  case  of  a  legislature  successfully  over- 
ruling a  court. 

The  Berlin  controversy  in  Massachusetts  furnishes  another 
example  of  a  legislature  successfully  amending  a  convention 
act. 

In  1853  the  legislature  of  Massachusetts,  emboldened  by 
the  example  of  the  New  York  Assembly,  attempted  to  follow 
that  example.  After  the  ratification  of  the  convention  act  of 
1852  by  the  people,  the  legislature  struck  out  the  provision 
that  the  election  of  delegates  should  be  by  secret  ballot.  The 
election  was  held  under  the  amended  law,  for  the  candidates 
had  no  other  alternative  except  to  withdraw  from  the  contest. 
Nevertheless,  great  indignation  was  aroused  by  this  action  of 
the  legislature. 

One  of  the  first  and  most  bitterly  debated  questions,  there- 
fore, which  arose  in  the  convention  of  1853  was  whether  the 
legislature  had  any  right  so  to  override  the  action  of  the  people. 
A  complete  repudiation  of  this  action,  however,  would  as  in  the 
New  York  case,  have  had  an  embarrassing  result;  for  if  the 
legislative  action  was  illegal  and  void,  why  then  the  election 
held  under  it  was  void,  and  the  delegates  so  elected  would  not 
be  entitled  to  their  seats. 

Similarly  with  the  delegates  to  the  Massachusetts  convention 
of  1853.  Accordingly  they  seated  themselves,  thereby  ratifying 
the  action  of  the  legislature,  and  then  proceeded  to  excoriate 
the  legislature  for  its  action. 

The  vacancy  from  the  town  of  Berlin  furnished  the  op- 
portunity for  criticizing  the  legislature.  Henry  Wilson,  the 
"Natick  Cobbler,"  who  later  became  Vice  President  of  the 
United  States,  had  been  elected  from  both  Natick  and  Berlin, 
and  had  declined  election  from  the  latter.  The  question  arose 
as  to  how  to  instruct  the  selectmen  of  Berlin  to  fill  the  vacancy. 
Ben  Butler  seized  the  opportunity  and  moved  that  the  vacancy 
be  filled  in  the  manner  provided  by  the  original  convention 
act,  rather  than  in  the  maimer  provided  by  that  act  as  amended 
by  the  legislature.  Rufus  Choate  led  the  defense  of  the  legis- 
lature, but  he  was  overwhelmingly  defeated.  Thus  the  con- 
vention went   on   record  as  repudiating   the  idea  that  the 


THE  CONVENTION  ACT  NOT  AMENDABLE  103 

legislature  can  amend  a  convention  act  after  its  adoption  by 
the  people.1 

These  were  both  cases  in  which  the  people  had  voted  for  the 
convention,  under  the  convention  act. 

We  saw  in  an  earlier  chapter  that  there  was  some  authority 
for  the  proposition  that  the  people  assume,  ratify,  and  become 
responsible  for  a  convention  act,  by  merely  participating  in 
the  election  of  delegates  to  the  convention  to  be  held  under  it.2 
In  one  such  case  there  has  been  an  attempt  at  legislative  amend- 
ment. This  occurred  in  the  bloody  days  in  Kansas  just  prior 
to  the  Civil  War.  The  Kansas  legislature  of  1855  took  the  sense 
of  the  electorate  at  the  October  election  of  1856  on  the  advisa- 
bility of  holding  a  constitutional  convention.  The  electorate 
approved.  The  legislature  accordingly  passed  an  act  providing 
for  the  choice  of  delegates  in  June  and  for  a  convention  in 
September,  which  was  to  have  full  discretion  as  to  how  to  sub- 
mit its  constitution  for  ratification.  So  far  in  the  proceedings, 
the  slavery  men  had  been  in  control,  and  they  controlled  the 
convention.  The  convention  submitted  two  alternative  con- 
stitutions to  be  voted  on,  December  21,  1857,  but  did  not 
provide  any  method  for  the  rejection  of  both. 

The  free-state  legislature,  which  was  elected  in  October  of 
that  year,  met  December  17  and  voted  to  submit  the  whole 
question  of  the  constitution  on  January  4.  The  form  with  the 
strongest  slavery  provisions  carried  in  December,  but  both 
constitutions  were  rejected  in  January;  only  slavery  men  par- 
ticipating in  the  first  election  and  only  free-staters  in  the  second. 

Thus  the  question  was  presented  to  Congress  as  to  the 
authority  of  the  legislature  to  amend  the  convention  act  after 
the  people  had  elected  delegates  under  it  and  thereby  ratified 
it.  The  national  House  decided  that  the  legislature  did  have 
this  power,  but  President  Buchanan  and  the  national  Senate 
decided  that  it  did  not;  so  no  decision  was  reached,  and  the 
matter  was  deadlocked.3 

Virginia  presents  the  most  recent  example  of  an  attempt  to 
amend  a  convention  act.  The  legislature  of  1900  submitted 
to  the  voters  the  question  "Shall  there  be  a  convention  to 
revise  the  constitution  and  amend  the  same?" 4    The  vote  was 

1  See  Jameson,  pp.  333-338.  2  See  p.  72,  supra. 

3  Jameson,  pp.  534^536.  4  Va.  Acts  1900,  c.  778. 


104  CONSTITUTIONAL  CONVENTIONS 

favorable.  Accordingly  in  1901  the  legislature  passed  a  statute 
prescribing  the  details  for  the  convention.1  Now  the  people 
having  voted  that  the  convention  should  revise  and  amend 
the  constitution,  a  provision  in  the  second  act  requiring  the 
convention  merely  to  frame  and  submit  was  considered  by 
many  to  be  an  attempt  by  the  legislature  to  amend  a  vote  of 
the  people.2  Accordingly  the  convention  refused  to  submit, 
and  the  constitution  promulgated  by  the  convention  was  ac- 
cepted by  the  State  officials  and  was  sustained  by  the  courts.3 

So  far  as  the  author  knows,  these  are  the  only  cases  where 
a  legislature  has  attempted  to  amend  a  convention  act,  enacted 
by  the  people  rather  than  by  the  legislature. 

From  all  the  foregoing  we  see  that,  although  an  ordinary 
bit  of  legislation  enacted  by  the  people  is  amendable  by  the 
legislature,  nevertheless  a  convention  act,  not  being  ordinary 
legislation,  is  not  so  amendable.  But  it  is  possible  for  certain 
sorts  of  amendments  to  succeed,  by  reason  that  the  nature  of  the 
amendment  leaves  to  the  convention  and  the  people  no  choice 
but  to  acquiesce  in  the  amendment  or  to  give  up  the  con- 
vention. Successful  examples  of  this  limited  sort  are  not 
precedents  for  the  general  proposition  that  the  legislature  can 
make  any  sort  of  amendment. 

1  Va.  Acts  1901,  c.  243. 

a  VII  "  Va.  Law  Reg.,"  pp.  100-106. 

*  Taylor  v.  Commonwealth  (1903),  101  Va.  829. 


Chapter  IX 
LEGISLATIVE  CONTROL 

The  question  of  legislative  control  of  the  convention  was 
the  main  consideration  which  induced  Judge  Jameson  to  write 
his  book. 

Dodd  says: 

Judge  J.  A.  Jameson  in  his  work  on  Constitutional  Conventions 
took  the  position  that  a  convention  is  absolutely  bound  by  re- 
strictions placed  upon  it  in  the  legislative  act  by  which  it  is  called. 
Judge  Jameson  took  this  view  because  he  thought  it  necessary  that 
a  convention  be  completely  subordinate  to  the  existing  govern- 
ment.1 

Under  Judge  Jameson's  theory  a  constitutional  convention 
called  by  a  vote  of  the  people  may  be  restricted  by  simple  legis- 
lative act  so  that  it  may  not  revise  or  propose  the  revision  of  any 
part  of  the  existing  constitution  which  the  legislature  may  forbid 
it  to  touch.  The  convention  is  made  subordinate  to  an  organ  of 
the  existing  government.  Judge  Jameson  proceeded  on  the  assump- 
tion that  a  constitutional  convention  must  possess  sovereign  power 
—  that  is,  all  of  the  power  of  the  state  —  or  that  it  must  be  strictly 
subordinate  to  the  regular  legislature.  He  could  conceive  of  no 
middle  ground  between  these  extremes.  In  attempting  to  demolish 
the  theory  that  the  convention  is  sovereign,  he  went  to  the  other 
extreme  and  really  made  the  legislature  the  supreme  body  with 
respect  to  the  alteration  of  state  constitutions,  for  under  his  view 
a  convention  may  be  restrained  by  a  legislature  as  to  what  shall 
be  placed  in  the  constitution,  and  no  alteration  can  be  made  with- 
out legislative  consent.2 

Legislative  interference  with  a  convention  may  take  place 
in  any  of  five  ways,  namely  (1)  by  inserting  restrictions  in  the 
original  convention  act;  (2)  by  amending  that  act;  (3)  by 
inaction;  (4)  by  withholding  support;  or  (5)  by  governmental 

1  Dodd,  p.  73.  a  Dodd,  pp.  77-79. 


106  CONSTITUTIONAL  CONVENTIONS 

recognition.  These  five  methods  will  first  be  analyzed  and  then 
discussed  in  order.  The  question  of  the  power  of  the  legislature 
to  control  the  convention  by  means  of  the  original  convention 
act  depends  largely  on  the  question  of  whether  the  legislature 
passes  that  act  at  all,  which  has  already  been  considered  in 
Chapter  V.  If  it  be  found  that  the  voters  enacted  any  given 
convention  act,  the  question  will  then  take  the  form:  Can  the 
electorate  control  the  convention?  The  question  in  this  form 
will  be  considered  in  Chapter  X. 

The  power  of  the  legislature  to  control  the  convention  by 
means  of  an  amendment  to  the  original  convention  act  depends 
largely  upon  whether  the  legislature  has  any  right  to  amend 
the  act.  This  was  considered  in  the  preceding  chapter.  The 
questions  of  legislative  inaction  and  of  legislative  recognition 
of  a  new  constitution  require  no  analysis. 

Let  us,  then,  first  consider  the  general  power  of  the  legis- 
lature to  control  the  convention  by  means  either  of  the  original 
act  or  of  an  amendment  (otherwise  lawful)  thereto.  Jameson 
built  up  his  book  around  the  doctrine  of  legislative  supremacy, 
because  he  could  not  conceive  of  conventions  and  legislatures 
being  coordinate.  The  antithesis  of  the  doctrine  of  legislative 
supremacy  is  the  doctrine  of  convention  sovereignty,  which 
will  be  discussed  in  a  later  chapter.1  The  reverse  of  the  theory 
that  the  legislature  has  power  to  control  the  convention  is  the 
theory  that  the  convention  has  extraordinary  power  to  enact 
ordinary  legislation.  This  is  a  phase  of  the  doctrine  of  conven- 
tion sovereignty.  The  question  of  whether  the  legislature  has 
power  to  require  oaths  by  the  convention  delegates  and  sub- 
mission of  the  new  constitution  to  the  people  will  be  discussed 
in  the  chapters  on  those  subjects.2 

Has  the  legislature  the  power  to  restrict  the  convention  in 
advance?  Under  a  number  of  the  present  State  constitutions, 
it  may  be  definitely  said  that  a  legislature  cannot  bind  a  con- 
vention in  any  way.  In  New  York  and  Michigan,  conventions, 
when  authorized  by  a  vote  of  the  people,  assemble  without 
any  legislative  action;  for  in  these  States  constitutional  pro- 
visions have  been  adopted  for  the  express  purpose  of  making 
conventions  entirely  independent  of  legislative  control;  and 
there  any  effort  by  the  legislature  to  control  the  convention's 

1  Chapter  XI,  infra.  2  Chapters  XIV  and  XVI,  infra. 


LEGISLATIVE  CONTROL  107 

action  would  clearly  be  a  violation  of  the  constitution.1  The 
same  statement  holds  with  reference  to  the  Missouri  con- 
stitution, by  the  terms  of  which  the  only  step  to  be  taken  by  the 
legislature  is  that  of  submitting  to  the  people  the  question  as 
to  whether  a  convention  shall  be  held.2  And  the  same  is  prob- 
ably true  with  reference  to  constitutions  which  impose  upon 
the  legislature  the  one  specific  duty  of  providing  for  the  election 
of  delegates  after  the  people  have  decided  that  a  convention 
shall  be  held.  Inasmuch  as  both  bodies  are  legislative  in 
character,  a  specific  power  conferred  upon  the  regular  legislature 
may  perhaps  be  said  by  implication  to  exclude  any  other 
control  over  the  convention.3 

By  necessary  implication,  the  legislature  is  prohibited  from  any 
control  over  the  method  of  revising  the  Constitution.  The  conven- 
tion is  an  independent  and  sovereign  body  whose  sole  power  and 
duty  are  to  prepare  and  submit  to  the  people  a  revision  of  the 
Constitution,  or  a  new  Constitution  to  take  the  place  of  the  old 
one.  It  is  elected  by  the  people,  answerable  to  the  people,  and  its 
work  must  be  submitted  to  the  people  through  their  electors 
for  approval  or  disapproval.4 

The  Alabama  constitution  of  1901  expressly  confers  full  power 
upon  a  convention  to  act  in  the  drafting  of  a  new  constitution, 
thereby  excluding  the  possibility  of  legislative  interference.5 

The  process  of  amendment  of  State  constitutions  in  the  legis- 
lative manner  is  absolutely  under  the  control  of  the  State  legis- 
latures, except  in  the  States  which  have  adopted  the  popular 
initiative.  Under  this  procedure  no  action  may  be  taken  except 
upon  the  initiative  of  the  legislature,  this  method  of  altering 
constitutions  thus  being  absolutely  subject  to  legislative  con- 
trol. 

The  calling  of  constitutional  conventions  is  also  to  a  large 
extent  subject  to  legislative  control,  but  the  convention  method 
of  altering  constitutions  is  considerably  more  independent  of 
the  regular  legislature,  unless  Judge  Jameson's  theory  be 
adopted.  The  convention  loses  a  large  part  of  its  usefulness 
as  an  organ  of  the  State  if  it  be  treated  as  strictly  subject  to 
control  by  the  legislature.6 

1  Dodd,  p.  55.  2  Dodd,  pp.  55-56.  3  Dodd,  p.  74. 

4  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  340-341. 
8  Dodd,  p.  74.  6  Dodd,  p.  79. 


108  CONSTITUTIONAL  CONVENTIONS 

This  view  was  well  expressed  by  the  Judiciary  Committee 
of  the  New  York  convention  of  1894: 

It  is  of  the  greatest  importance  that  a  body  chosen  by  the 
people  of  this  State  to  revise  the  organic  law  of  the  State,  should 
be  as  free  from  interference  from  the  several  departments  of 
government  as  the  legislative,  executive  and  judiciary  are,  from 
interference  by  each  other.  Unless  this  were  so,  the  will  of  the 
people  might  easily  be  nullified  by  the  existing  judiciary  or  legis- 
lature.1 

Thus  the  weight  of  authority,  at  least  with  respect  to  con- 
ventions'authorized  by  the  constitution,  is  that  the  legislature 
cannot,  or  at  least  ought  not  to  be  permitted  to,  restrict  the 
convention  in  advance. 

Let  us,  however,  discuss  a  few  actual  cases  in  which  the  legis- 
lature did  succeed  in  restricting  the  convention.  One  common 
method  of  attempted  restriction  has  been  for  the  legislature 
to  provide  that  no  delegate  should  be  permitted  to  take  his 
seat  in  the  convention  until  he  should  have  taken  an  oath  to 
proceed  in  a  certain  manner.  This  course  was  pursued  with 
respect  to  the  North  Carolina  conventions  of  1835  and  1875, 
the  Georgia  convention  of  1833,  the  Illinois  conventions  of 
1862  and  1869,  and  the  Louisiana  convention  of  1898.  The  last- 
named  convention  expressly  recognized  the  restrictions  as  bind- 
ing upon  it.2 

The  Georgia  convention  also  took  the  oath  required.  The 
North  Carolina  conventions  objected  to  the  oath,  but  never- 
theless took  it  and  observed  the  restrictions.3  The  two  Illinois 
conventions  took  the  oath  in  a  very  modified  form.  Several 
of  these  cases  lose  their  value  as  precedents  in  this  connection, 
however;  for  the  convention  act  was  submitted  to  and  approved 
by  the  people,  and  hence  the  restrictions  may  be  said  to  have 
been  placed  on  the  convention  by  the  people  and  not  by  the 
legislature.4 

Dodd  says: 

It  would  seem  that  these  conventions  might,  had  they  thought 
proper,  have  declined  to  take  the  oaths,  and  have  organized  and 

1  Report  of  Judiciary  Committee,  headed  by  Elihu  Root,  and  unanimously 
adopted  by  the  convention.    Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  250. 

2  Dodd,  p.  81. 

■  Dodd,  p.  81.         v  *  Jameson,  p.  284. 


LEGISLATIVE  CONTROL  109 

proceeded  to  act  without  doing  so,  just  as  was  done  by  the  Illi- 
nois convention  of  1862.1 

In  the  first  of  the  two  Pennsylvania  cases  arising  out  of  the 
convention  of  1872,  the  Supreme  Court  issued  an  injunction 
restraining  the  convention  from  submitting  its  constitution  to 
a  popular  vote  in  a  manner  different  from  that  prescribed  by 
the  legislature.2 

The  Pennsylvania  constitution  of  1838  contained  no  provision 
with  reference  to  the  calling  of  a  convention,  but  the  legislature 
of  1872  provided  for  the  assembling  of  a  convention,  after  having 
first  submitted  to  the  people  the  question  as  to  whether  or  not  a 
convention  was  desired.  The  act  of  1872,  under  which  the  con- 
vention assembled,  provided  that  the  constitution  which  it  framed 
should  be  voted  upon  at  an  election  held  in  the  same  manner  as 
general  elections.  .  .  .  The  convention  disregarded  the  legislative 
act  by  providing  machinery  of  its  own  for  the  submission  of  the 
constitution  in  Philadelphia,  and  appointed  election  commissioners 
for  this  special  purpose.  .  .  .  An  injunction  was  granted  restrain- 
ing the  commissioners  appointed  by  the  convention  from  holding 
the  election  in  Philadelphia.  The  court  .  .  .  declared  that  the 
submission  of  the  constitution  in  a  manner  different  from  that  pro- 
vided by  law  was  clearly  illegal.  The  court  said  that  the  conven- 
tion had  no  power  except  that  conferred  by  legislative  act,  and 
that  any  violation  of  such  act  or  any  action  in  excess  thereof 
would  be  restrained. 

If  the  calling  of  a  convention  is  thus  assumed  to  be  an  exercise 
of  regular  legislative  power,  may  it  not  be  plausibly  argued  that 
the  convention,  when  called,  is  absolutely  subject  to  the  conditions 
of  the  legislative  act?  This  is,  to  a  large  extent,  the  argument  of 
Wells  v.  Bain.3 

But  this  decision  loses  weight  in  this  connection  from  the 
fact  that  the  court  expressly  held  the  convention  act  to  be  the 
creature  of  the  people  and  not  of  the  legislature. 

Jameson  bases  his  theory  of  legislative  supremacy  largely 
upon  the  Pennsylvania  decision  just  discussed.  But  in  doing 
so  he  fails  to  notice  that  a  later  case  in  the  same  volume  of  Penn- 

1  Dodd,  p.  81,  n.  15.    The  matter  of  oaths  will  be  more  fully  discussed  in  a 
later  chapter.    See  pp.  187-190,  infra. 
-  2  WeUs  v.  Bain  (1872),  75  Pa.  39. 

8  Dodd,  pp.  83-84  and  n.  21. 


110  CONSTITUTIONAL  CONVENTIONS 

sylvania  reports  holds  squarely  that  the  legislature  cannot  limit 
the  convention,  but  that  the  people  can  and  did  in  this  in- 
stance. 

Thus  the  first  Pennsylvania  case,  interpreted  in  the  light  of 
the  second,  is  clearly  no  authority  at  all  for  the  doctrine  of 
legislative  supremacy.  The  exact  language  of  the  second 
Pennsylvania  decision  is  as  follows: 

It  is  simply  evasive  to  affirm  that  the  legislature  cannot  limit 
the  right  of  the  people  to  alter  or  reform  their  government.  Cer- 
tainly it  cannot.  .  .  .  When  the  people  act  through  a  law,  the 
act  is  theirs,  and  the  fact  that  they  used  the  legislature  as  their 
instrument  to  confer  their  powers  makes  them  the  superiors,  and 
not  the  legislature.1 

And  compare  the  following: 

The  restrictions  sought  to  be  placed  upon  conventions  by 
legislative  acts  have  not  in  practice  been  recognized  as  of  binding 
force,  except  in  a  few  cases.2 

First.  That  a  constitutional  convention  lawfully  convened, 
does  not  derive  its  powers  from  the  legislature,  but  from  the  people. 

Second.  That  the  powers  of  a  constitutional  convention  are  in 
the  nature  of  sovereign  powers. 

Third.  That  the  legislature  can  neither  limit  or  restrict  them 
in  the  exercise  of  these  powers.3 

Although  there  is  some  authority  to  the  effect  that  the  people, 
in  voting  to  permit  the  legislature  to  call  a  convention,  thereby 
constitute  the  legislators  their  agents  to  restrict  the  convention,4 
yet  Dodd  is  strongly  of  the  opinion  that,  on  the  contrary,  the 
popular  vote  should  be  interpreted  as  calling  for  an  unrestricted 
convention.5 

Jameson  cites  a  large  number  of  minor  instances  in  which 
conventions  adhered  to  the  terms  of  the  convention  act,6  but 
in  at  least  half  of  these  the  act  had  been  submitted  to  the  people, 
and  in  the  rest  these  restrictions  were  apparently  satisfactory 
to  the  convention,  as  it  accepted  them  without  protest. 

"  Wood's  Appeal  (1874),  75  Pa.  59,  71-72. 

2  I  "  Cyc.  American  Government,"  430. 

8  Loomis  v.  Jackson  (1873),  6  W.  Va.  613,  708. 

4  Dodd,  p.  87,  n.  26. 

6  Dodd,  p.  76.    Cf.  Braxton,  VII  "  Va.  Law  Reg.,"  100-106. 

6  Jameson,  pp.  369-375. 


LEGISLATIVE  CONTROL  111 

The  instances  of  successful  restraint  of  territorial  conventions 
by  Congress,  cited  by  him,1  are  not  in  point,  for  Congress  is  an 
outside  sovereign,  not  at  all  comparable  to  the  legislature  of 
the  territory  itself. 

Thus  there  is  a  marked  scarcity  of  instances  in  which  the 
legislature  has  succeeded  in  restricting  the  convention.  In  the 
following  instances  the  legislature  failed  to  impose  these  restric- 
tions successfully. 

The  second  Pennsylvania  case  turned,  among  other  things, 
on  the  point  that  the  convention  act  had  imposed  the  restric- 
tion that  the  convention  should  not  alter  the  Bill  of  Rights. 
The  convention  altered  the  Bill  of  Rights,  and  this  was  held 
not  to  invalidate  the  new  constitution.2  If  we  follow  Jameson 
in  treating  this  as  a  legislative  restriction,  we  have  here  an  ex- 
ample of  a  successful  disregard  of  a  restriction,  and  of  the  judi- 
cial sustaining  of  this  disregard.  The  convention  itself  treated 
this  as  a  legislative  restriction,  and  altered  the  Bill  of  Rights, 
not  because  they  thought  it  needed  altering,  but  solely  as  a 
slap  at  the  legislature.3  Treated,  however,  as  a  popular  re- 
striction, this  decision  will  be  discussed  in  the  next  chapter. 

We  have  already  seen  that  the  Illinois  conventions  of  1862 
and  1869  successfully  disregarded  the  legislative  requirements 
of  an  oath  by  the  delegates.4 

The  Georgia  convention  of  1789,  called  for  the  sole  purpose  of 
accepting  or  rejecting  a  constitution  which  had  been  prepared 
by  the  convention  of  1788,  proposed  certain  alterations,  which 
were  laid  before  a  third  convention.5 

The  New  York  convention  of  1867  sat  beyond  the  time  fixed 
by  the  legislature  for  the  submission  of  its  work  to  the  people, 
and  submitted  its  work  at  a  later  date.6  The  Alabama  conven- 
tion of  1901  increased  the  pay  of  its  delegates  above  the  amount 
limited  by  the  legislature.7 

The  statute  calling  the  Michigan  convention  of  1908  provided 
that  the  constitution  should  be  submitted  to  the  people  in 
April.  The  convention  ordered  its  submission  in  November. 
The  Secretary  of  State  doubted  the  power  of  the  convention 

1  Jameson,  pp.  367-368. 

2  Wood's  Appeal  (1874),  75  Pa.  59. 

3  Deb.  Pa.  Conv.  1872,  Vol.  VIII,  pp.  54,  57,  63. 

4  Jameson,  p.  284. 

5  Jameson,  pp.  135-136.  6  Dodd,  p.  82.  7  Dodd,  p.  82. 


112  CONSTITUTIONAL  CONVENTIONS 

to  fix  a  date  other  than  that  set  by  the  legislature  and  refused 
to  comply  with  the  order  of  the  convention;  whereupon  the 
officers  of  the  convention  obtained  a  mandamus  from  the 
Supreme  Court  and  compelled  submission  at  the  date  set  by 
the  convention.1  The  reasons  for  the  mandamus  were  varied, 
but  two  of  the  court,  including  the  Chief  Justice,  said: 

By  necessary  implication,  the  legislature  is  prohibited  from 
any  control  over  the  method  of  revising  the  constitution.  The 
convention  is  an  independent  and  sovereign  body.  .  .  .  It  is- 
elected  by  the  people,  answerable  to  the  people,  and  its  work  must 
be  submitted  to  the  people  through  their  electors  for  approval  or 
disapproval.  .  .  .  The  convention  was  the  proper  body  to  de- 
termine at  what  election  it  should  be  submitted  unless  that  is 
fixed  in  the  present  constitution.  ...  I  find  no  language  in  the 
constitution  from  which  any  implication  can  arise  that  this  power 
was  vested  in  the  legislature.2 

Even  Judge  Hooker  in  his  dissenting  opinion  in  that  case 
said,  "The  convention  has  a  sphere  in  which  the  legislature 
cannot  intrude,  a  discretion  that  it  cannot  control."  3 

The  Kentucky  convention  of  1890-1891  made  in  the  con- 
stitution some  changes  which  they  did  not  submit  to  the  people, 
although  required  to  do  so  by  the  legislative  act.4  The  Virginia 
convention  of  1901-1902  promulgated  its  entire  constitution 
without  a  popular  vote,  although  required  by  the  convention 
act  to  submit  the  constitution  to  the  people.5  In  both  of  these 
cases,  the  changes  were  recognized  by  the  existing  government 
and  acquiesced  in  by  the  people;  and  the  courts  refused  to 
interfere.6  Similarly  the  Illinois  convention  of  1847  omitted 
to  submit  one  of  its  amendments.7 

The  Alabama  legislature,  in  its  act  providing  for  the  con- 
vention of  1901,  forbade  the  convention  to  do  certain  things 
and  required  that  it  incorporate  certain  provisions  into  the 
new  constitution.     The  legislative  restrictions  were  not  ob- 

1  Dodd,  pp.  84-85. 

2  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  340-343. 

3  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337. 

4  Dodd,  pp.  85-86. 
6  Dodd,  p.  86. 

6  Miller  v.  Johnson  (1892),  92  Ky.  589;  Taylor  v.  Commonwealth  (1903),  101 
Va.  829. 

7  Dodd,  p.  86,  n.  23.  * 


LEGISLATIVE  CONTROL  113 

served  in  full,  and  an  effort  was  made  to  prevent  future  legis- 
lative interference  with  conventions  by  inserting  into  the 
constitution  of  1901  the  provision  that  "Nothing  herein  con- 
tained shall  be  construed  as  restricting  the  jurisdiction  and 
power  of  the  convention,  when  duly  assembled  in  pursuance  of 
this  section,  to  establish  such  ordinances  and  to  do  and  perform 
such  things  as  to  the  convention  may  seem  necessary  or  proper 
for  the  purpose  of  altering,  revising  or  amending  the  existing 
constitution.  "1 

The  insertion  of  this  provision  was  clearly  intended  as  a 
rebuke  to  the  legislature. 

Dodd  sums  up  the  matter  of  legislative  restrictions  in  the 
following  words: 

From  the  above  discussion  it  may  be  seen  that  where  the  question 
has  been  raised  the  conventions  and  courts  have  in  but  a  few  cases 
taken  the  view  that  constitutional  conventions  are  absolutely 
bound  by  restrictions  sought  to  be  placed  upon  them  by  legislative 
acts.  The  restrictions  placed  upon  conventions  have  certainly 
not  in  practice  been  recognized  as  of  binding  force,  except  in  a  few 
cases,  and  theoretically  the  convention  in  the  performance  of  its 
proper  functions  should  be  independent  of  the  regular  legislative 
organs  of  the  state.  .  .  .  The  good  sense  of  the  people  has  ordi- 
narily caused  both  legislatures  and  conventions  to  restrict  them- 
selves to  their  proper  spheres.  The  general  obedience  of  con- 
ventions to  the  legislative  acts  under  which  they  were  called  has 
been  due  to  the  fact  that  legislative  acts  have  usually  required  only 
those  things  which  the  convention  would  have  done  without 
legislative  requirement;  cases  of  conflict  arise  only  when  a  legisla- 
ture attempts  to  restrict  a  convention  in  such  a  manner  as  to 
interfere  with  its  proper  functions,  and  such  cases  have  not  been 
numerous.  .  .  .  The  possibility  of  conflict  is  avoided  if  the  con- 
vention as  an  organ  for  constitutional  revision  is  entirely  freed 
from  the  control  of  the  regular  legislature.2 

Both  the  legislature  and  the  convention  are  chosen  by  the 
people,  and  when  it  is  remembered  that  abler  men  are  usually 
chosen  to  conventions  than  to  legislatures,  it  is  perhaps  clear 
that  conventions  are  apt  to  be  equally  as  competent  to  exercise 
the  limited  powers  committed  to  them  as  are  legislatures  to  instruct 
the  conventions  as  to  what  they  shall  or  shall  not  do.  The  con- 
vention is  less  apt  to  abuse  its  power  in  the  drafting  of  a  con- 

1  Dodd,  p.  82.  2  Dodd,  pp.  91-92. 


114  CONSTITUTIONAL  CONVENTIONS 

stitution,  than  is  the  legislature  in  placing  limitations  upon  the 
convention,  if  the  legislature  were  assumed  to  have  such  power.1 

As  a  rule,  then,  constitutional  conventions  are  subject  only  to 
the  following  restrictions:  (1)  those  contained  in  or  implied  from 
provisions  in  the  existing  state  and  federal  constitutions,  and  (2) 
in  the  absence  of  constitutional  provisions,  those  derived  or  implied 
from  the  limited  functions  of  conventions.  To  these  restrictions 
Jameson  and  others  would  add  those  imposed  by  legislative  acts 
under  which  conventions  are  called,  but  such  restrictions  are 
certainly  not  yet  recognized  as  of  absolute  binding  force,  except 
in  Pennsylvania,  and  should  not  be  so  recognized  if  the  convention 
is  to  be  an  instrument  of  great  usefulness.2 

Even  Jameson  hesitated  to  push  his  doctrine  of  legislative 
supremacy  to  its  extreme  limits.3  For  example,  he  took  the 
position  that  legislative  interference  with  a  convention  is 

subject  to  the  limitation,  that  its  requirements  must  be  in  harmony 
with  the  principles  of  the  convention  system,  or,  rather,  not  incon- 
sistent with  the  exercise  by  the  convention,  to  some  extent,  of  its 
essential  and  characteristic  function.4 

Thus  Jameson  in  effect  promulgates  the  doctrine  of  reason- 
able restrictions;  that  is,  he  believes  that  the  validity  of 
legislative  restrictions  depends  upon  whether  or  not  they 
interfere  with  the  natural  prerogatives  of  a  convention.  This 
knocks  the  very  bottom  out  of  the  theory  of  legislative  su- 
premacy. 

The  right  of  the  legislature  to  impose  reasonable  restrictions 
upon  a  convention  is  very  similar  to  the  right  of  the  legislature 
to  impose  such  restrictions  upon  the  [judiciary:  i.  e.,  the  legis- 
lature may  prescribe  reasonable  means  and  methods  for  the 
administration  of  justice,  but  has  no  power  to  deprive  the 
courts  of  any  of  their  inherent  functions. 

But  even  this  is  open  to  doubt.  The  power  to  restrict  the 
judiciary  is  based  upon  the  fact  that  court  legislation  is  indis- 
pensable, and  must  emanate  from  the  legislative  body.  But 
the  convention  is  a  legislative  body  of  a  higher  order  than  the 
legislature,5  and  can  legislate  for  itself.6  Ratione  cessante, 
cessat  ipsa  lex. 

1  Dodd,  p.  80,  n.  13.    2  Dodd,  p.  92.  3  Dodd,  p.  73. 

4  Jameson,  p.  364.       6  See  p.  90,  supra.  •  See  pp.  146,  147,  infra. 


LEGISLATIVE  CONTKOL  115 

From  all  the  foregoing  we  see  that  the  legislature  probably 
has  no  power  to  restrict  either  an  authorized  or  a  popular 
convention;  whenever  it  has  succeeded,  this  has  been  due  more 
to  force  of  circumstances  than  to  legal  rights.  Even  the  power 
to  impose  reasonable  restrictions  is  doubtful. 

So  much  for  the  question  as  to  whether  the  legislature  can 
bind  a  convention  in  advance.  Let  us  next  consider  whether 
the  legislature  can  interfere  with  the  convention  method  during 
its  pendency. 

Dodd  says: 

Judge  Jameson  pushed  his  theory  to  its  logical  conclusion  and 
held  that  a  convention,  even  after  elected  and  assembled,  might 
be  dissolved  by  legislative  act,  or  that  the  legislature  might  prevent 
the  submission  of  its  work  to  the  people.1 

On  this  point  Jameson  himself  says: 

If  the  provisions  made  by  a  convention  for  submitting  its  work 
to  the  people  are  deemed  to  be  inexpedient,  whether  made  with 
or  without  authority  of  law,  the  proper  law-making  authority 
of  the  state  may  repeal  or  alter  them  at  pleasure.2 

But  it  is  interesting  to  note  that  Jameson  amplifies  this 
thought  by  saying  that  the  question  has  never  arisen  in  practice, 
and  by  justifying  his  proposition  only  in  case  of  treason  by  the 
convention.3 

Hon.  Joel  Parker,  however,  went  even  further  than  Jameson, 
saying: 

I  say  it  was  legally  competent  for  the  legislature,  at  the  time 
they  modified  that  law,  to  have  repealed  it  totally,  so  far  as  it  stood 
a  law  upon  the  statute  book,  to  have  put  an  end  to  all  further 
action  under  it.  It  might  have  been  done  legally.  I  do  not  say 
that  a  revolution  might  not  have  occurred  in  consequence  of  such 
a  proceeding;  that  is  another  thing.  I  am  aware,  Sir,  that  such 
a  disregard  of  the  will  of  the  people  might  justify  a  resort  to  force; 
but  that  is  another  thing.  As  a  law  upon  the  statute  book,  having 
the  force  and  vigor  of  a  law  upon  the  statute  book,  and  no  more,  the 
legislature  have  the  same  power  over  it  which  they  have  over  any 
other  law,  and  they  might  have  repealed  it  if  they  had  seen  fit  to 
do  so.    Why  did  they  not  do  it?    Because  they  ought  not  to;  be- 

1  Dodd,  p.  79.  a  Jameson,  p.  421.  3  Jameson,  p.  421,  n.  2. 


116  CONSTITUTIONAL  CONVENTIONS 

cause  it  was  not  proper,  under  the  circumstances,  that  they  should 
exercise  that  power,  and  they  exercised  their  power  in  a  way  that 
they  did  not  think  proper.  I  maintain  further,  Sir,  that  I  am  willing 
to  place  myself  upon  the  issue,  that  this  Convention  sits  here  today 
under  that  as  a  statute  law  and  nothing  more;  and  the  legislature 
being  still  in  session  here,  may  constitutionally  and  legally  put  an 
end  to  the  existence  of  this  Convention  as  a  body  assembled  under 
the  Constitution  and  under  law,  before  that  session  closes.  (Sen- 
sation.) * 

The  only  reported  instance  of  an  attempt  by  the  legislature 
to  interfere  with  a  pending  convention  was  when  the  free-state 
legislature  of  Kansas,  during  the  bloody  days  just  prior  to  its 
admission  to  the  Union,  attempted  to  change  the  date  set 
by  a  convention  for  the  submission  of  its  constitution  to  the 
people.  The  pro-slavery  men  voted  at  one  election  and  the 
free-state  men  at  the  other,  with  two  different  results.  Congress 
on  one  hand  disagreed  with  President  Buchanan  and  the  Senate 
on  the  other  as  to  which  result  was  valid,  and  so  the  con- 
stitution adopted  at  the  date  originally  set  by  the  convention 
failed  of  national  recognition. 

The  New  York  Supreme  Court,  however,  pooh-poohs  the 
idea  that  the  legislature  has  the  power  to  nullify  the  work  of 
the  convention: 

If  the  legislature  can  alter  the  rule  of  representation,  it  can 
repeal  the  law  altogether  and  thus  defeat  a  measure  which  has 
been  willed  by  a  higher  power.2 

Dodd's  foregoing  reference  to  Jameson  is  seen  by  the  context 
to  be  disapproving.  And  all  the  authorities  to  the  effect  that 
the  legislature  cannot  amend  the  convention  act,  are  a  fortiori 
authorities  for  the  proposition  that  it  cannot  repeal  it. 

Thus  the  weight  of  authority  is  that  the  legislature  may  not 
restrict  a  convention  or  nullify  its  work,  but  that  the  people 
may.  This  power  of  the  people  will  be  discussed  in  the  next 
chapter. 

There  is,  however,  one  way  in  which  the  legislature  can  very 
effectively  interfere  with  amendment  by  convention.  We  have 
already  seen  the  dependence  of  the  people  upon  legislative 

1  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  155. 

2  Journal,  69th  N.  Y.  Assembly,  p.  920. 


LEGISLATIVE  CONTROL  117 

means  for  expressing  their  will.1  Without  the  assistance  of  either 
constitutional  provisions  or  legislation,  the  people  cannot  pass 
on  the  question  of  calling  a  convention.  Without  such  assist- 
ance, a  convention  cannot  be  elected  and  held.  Thus  in  those 
States  in  which  the  constitution  does  not  provide  all  the  neces- 
sary details  for  holding  a  convention,  the  legislature  can 
successfully  block  the  popular  will  by  mere  inaction.  We  have 
already  seen  how  in  1886  in  New  York,  the  popular  vote  to 
hold  a  convention  was  thwarted  by  the  legislature,  so  that  this 
convention  was  not  held  until  1894.2 

Similarly  in  New  Hampshire.  Although  the  vote  taken  under 
act  of  July  4,  1860,  showed  a  majority  in  favor  of  calling  a 
convention,  the  Senate  and  House  of  Representatives  at  the 
June  session,  1861,  failed  to  agree  upon  a  bill  for  that  purpose. 
Again  the  vote  under  act  of  August  19, 1864,  showed  a  majority 
of  the  voters  in  favor  of  calling  a  convention;  but  the  legislature 
of  the  June  session,  1865,  by  joint  resolution  decided  to  take 
no  action  in  the  matter.3 

The  courts  have  recognized  this  power  of  the  legislature  to 
prevent  the  holding  of  a  convention.  Thus  the  Supreme  Court 
of  Pennsylvania  says  of  the  vote  of  the  people  in  favor  of  calling 
a  convention: 

It  was  not  even  a  mandate,  further  than  the  moral  force  con- 
tained in  an  expressed  desire  of  the  people.  It  is  very  evident, 
had  the  matter  dropped  there,  and  the  legislature  had  made  no 
call,  no  convention  and  no  terms  would  ever  have  existed.  Not  a 
line,  nor  a  word,  nor  a  syllable  in  this  act  expresses  an  intent  of 
the  people  to  make  the  call  themselves,  or  on  what  terms  it  shall 
be  made,  or  what  powers  should  be  conferred.4 

Similarly  there  are  many  ways  in  which  the  legislature,  al- 
though keeping  within  its  proper  functions  and  powers,  can 
greatly  hamper  the  work  of  a  convention.  Holcombe  in  his 
recent  book  has  clearly  pointed  out  the  distinction  between 
legal  and  illegal  attempts  at  interference.    He  says: 

The  convention  should  be  free  to  disregard  any  special  limita- 
tions which  the  legislature  may  seek  to  impose  subsequently  to  the 

1  See  pp.  76-77,  supra. 

2  See  p.  76,  supra. 

3  Colby,  1912  Manual  of  N.  H.  Const.,  pp.  209-211. 

4  Wells  v.  Bain  (1872),  75  Pa.  39,  50-51. 


118  CONSTITUTIONAL  CONVENTIONS 

vote  by  the  people  sanctioning  the  call  of  the  convention,  but  it 
should  not  be  free  to  disregard  the  general  law  of  the  state,  whether 
expressed  in  the  constitution  or  in  the  acts  of  the  legislature.  A 
convention,  for  example,  may  disregard  a  legislative  act,  not  sub- 
mitted to  the  people  for  their  approval,  which  seeks  to  limit  the 
duration  of  the  deliberations  of  the  convention,  but  it  may  not 
disregard  a  legislative  act  providing  that  appropriations  for  the 
support  of  the  convention  shall  lapse  after  a  limited  period.  In 
other  words,  the  executive  or  judiciary  of  the  state  would  not  be 
justified  in  turning  a  convention  out  of  doors  after  the  period 
set  by  the  legislature  for  the  termination  of  its  deliberations  had 
expired,  but  they  would  be  justified  in  withholding  further  funds. 
The  convention  might  continue  in  session,  but  it  would  have  to 
look  to  the  people  for  indemnification  for  any  further  expenses 
that  might  be  incurred.1 

Thus  we  see  that  although  the  legislature  cannot  directly 
interfere  with  a  convention,  it  can  do  so  indirectly  by  inaction, 
or  by  withholding  governmental  supporjt.  In  event  the  latter 
is  attempted,  however,  the  convention  probably  has  full  inci- 
dental powers  to  support  itself,  for  it  can  pledge  the  faith  of  the 
State  to  pay  for  its  legitimate  expenses.2 

There  is  one  further  way  in  which  the  legislature  can  inter- 
fere with  a  convention.  It  can  determine  the  validity  or  invalid- 
ity of  the  new  constitution,  if  that  be  a  political  question.  Thus 
Braxton  says  that  any  act  of  the  existing  government  in  recog- 
nition of  irregular  constitutional  changes  should  be  regarded 
as  acquiescence  and  ratification  by  the  people.3 

And  we  have  already  seen  that  when  the  Federal  executive 
interferes  to  recognize  or  suppress  a  State  government,  the  State 
executive  participates  to  some  extent  in  this  action  by  request- 
ing it.4  Similarly  the  State  legislature  may  participate;  in  fact, 
the  Federal  Constitution  provides  that  intervention  to  restore 
order  shall  be  done  only  at  the  request  of  the  legislature  of  the 
State  if  that  legislature  be  in  session.5 

Thus,  from  all  the  foregoing  discussion,  we  see  that,  although 
the  legislature  apparently  has  no  power  to  restrict  a  convention 

1  Holcombe,  State  Government,  pp.  127-128. 

2  See  pp.  173, 177,  infra. 

»  VII  "  Va.  Law  Reg.,"  79,  97. 

4  See  p.  95,  supra. 

*  U.  S.  Const.,  Art.  IV,  §  4. 


LEGISLATIVE  CONTROL  119 

in  advance,  or  to  nullify  its  results  by  abolishing  it  or  by  pre- 
venting the  submission  of  its  work  to  the  people,  yet  the  legis- 
lature does  have  power  in  many  cases  to  prevent  the  holding  of 
a  convention.  And  in  event  of  a  dispute  as  to  the  validity  of  a 
new  constitution,  the  legislature  may  possibly  be  in  a  position 
to  determine  this  question  by  the  political  act  of  either  recog- 
nizing or  refusing  to  recognize  the  change,  or  by  calling  on  the 
Federal  government  for  support  or  suppression. 

The  legal  standing  of  a  convention  may  also  depend  upon 
recognition  or  nonrecognition  by  the  Federal  legislature.1  In 
the  case  of  a  territorial  convention,  this  power  is  absolute.2 

On  legislative  control  in  general  see  also  the  first  three  pages 
of  the  next  chapter. 

*  Cf.  Pac.  States  Tel.  Co.  v.  Oregon  (1912),  223  U.  S.  118. 
2  U.  S.  Const.,  Art.  IV,  §  3. 


Chapter  X 

POPULAR  CONTROL 

Can  the  electorate  control  the  convention?  This  question 
is  differentiate  and  has  been  differentiated  from  that  of  legis- 
lative control,  discussed  in  the  last  chapter.    Thus  Dodd  says: 

Mr.  Braxton  takes  the  view  that  a  convention  is  bound  by 
a  legislative  act  which  has  been  approved  by  the  people  upon  a 
popular  vote,  but  not  by  other  legislative  acts.1 

Braxton  himself  says: 

The  Legislature  has  no  authority  to  enlarge  or  curtail  the  powers 
of  the  constitutional  convention,  which  derives  its  authority 
directly  from  the  people.2 

If  it  be  true,  as  the  writer  endeavored  to  show  in  his  first  arti- 
cle above  referred  to,  that  the  people  alone  have  the  power  of  enact- 
ing or  changing  the  Fundamental  Law;  that  from  them  alone 
does  the  Convention  derive  its  powers  in  that  regard;  and  that 
they  can  confer  just  so  much,  or  so  little,  of  those  powers  upon  the 
Convention  as  they  please  —  then  it  necessarily  follows  that  the 
Legislature  (which  is  not  "the  People")  cannot  prescribe  the  Con- 
vention's powers. 

If  this  conclusion  be  sound,  it  follows  that,  in  ascertaining  the 
powers  of  the  Convention,  we  cannot  look  to  the  Act  of  February, 
1901,  passed  after  the  Convention  had  been  ordered  by  the  People; 
and  that  the  limitations  imposed  by  that  Act,  which  was  never  sub- 
mitted to,  nor  ratified  by  the  People,  are  of  no  binding  force.3 

This  draws  a  clear  distinction  between  the  lack  of  power  of 
the  legislature  to  control  the  convention,  and  the  power  of  the 
people  to  control  it.  This  distinction  is  the  real  answer  to  the 
question  of  whether  the  convention  is  bound  by  the  convention 

i  Dodd,  p.  76,  n.  7. 

2  VII  "  Va.Law  Reg.,"  79,  96-97. 

8  VII  "  Va.  Law  Reg.,"  100,  101-102. 


POPULAE  CONTROL  121 

act.  If  the  convention  act  be  the  creature  of  the  people,  the 
convention  is  bound. 

Most  of  the  cases  usually  cited  |in  support  of  legislative 
supremacy  will  be  found  on  analysis  merely  to  sustain  the  doc- 
trine of  popular  supremacy,  i.  e.  the  limitation  of  the  conven- 
tion to  the  powers  expressly  or  impliedly  delegated  to  it  by  the 
people.  Thus  the  Pennsylvania  case,  which  is  usually  cited  as 
the  chief  support  of  the  doctrine  of  legislative  supremacy  is 
seen  in  the  light  of  a  statement  later  made  by  the  same  court 
to  hold  merely  that  the  people  can  restrict  the  convention  by 
the  terms  of  the  convention  act.1  Most  of  the  cases  cited  in 
favor  of  legislative  supremacy  are  open  to  the  same  construc- 
tion. Similarly  any  case  which  may  possibly  be  cited  in  denial 
of  the  right  of  the  people  to  limit  the  convention  may  be  found 
on  analysis  to  depend  upon  a  misconstruction  of  the  situation, 
the  court  assuming  that  the  question  of  legislative  supremacy 
was  involved  and  hence  intending  to  deny  merely  the  existence 
of  any  legislative  control. 

The  foregoing  distinction,  namely,  that  although  the  legis- 
lature may  not  restrict  the  convention,  the  people  may,  has 
been  variously  expressed  as  follows: 

It  is  true  that  the  legislature  cannot  limit  the  Convention;  but 
if  the  people  elect  them  for  the  purpose  of  doing  a  specific  act  or 
duty  pointed  out  by  the  act  of  the  legislature,  the  act  would 
define  their  powers.  For  the  people  elect  in  reference  to  that  and. 
nothing  else.2 

Proceeding  from  the  accepted  rule  that  whatever  powers  the 
convention  may  possess  must  be  derived  from  the  people,  he  argues 
that  the  terms  of  the  vote  actually  adopted  by  the  people  are  the 
evidence  of  the  extent  of  these  powers,  and  that  any  restrictions 
which  the  legislature  may  seek  to  impose  without  the  express  ap- 
proval of  the  people  are  unauthorized  and  hence  invalid.  The 
legislature  may  propose  to  the  people  whatever  limitations  it 
pleases,  but  these  limitations  must  be  accepted  by  the  people  in 
order  to  take  effect  upon  the  convention.3 

Where,  then,  it  may  be  asked,  must  we  look  for  the  real  limita- 
tions of  the  Convention's  powers,  if  not  to  the  Act  of  February, 

1  Wood's  Appeal  (1874),  75  Pa.  59,  71-72. 

2  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  222-223. 

3  Holcombe,  State  Government,  p.  127. 


122  CONSTITUTIONAL  CONVENTIONS 

1901?  The  answer  is  obvious:  To  the  Act  of  March  5,  1900,  under 
which  the  Convention  was  ordered  to  be  called.  But,  it  will  be 
objected,  this  is  also  an  Act  of  the  Legislature,  and  can  therefore 
have  no  more  force  than  the  Act  of  February,  1901,  which,  being 
subsequent,  is  really  controlling.  It  will  be  seen,  however,  that 
the  Act  of  March,  1900,  so  far  as  the  Legislature  was  concerned, 
settled  nothing;  it  was  a  mere  proposition,  which  acquired  bind- 
ing force  only  by  its  acceptance  by  the  People,  who  alone  may  be 
said  to  have  enacted  it.1 

So  much  for  the  distinction  between  the  results  of  legislative 
and  popular  enactment.  The  above  quotations  establish  the 
principle  that  the  people  may  control  their  convention  in  ad- 
vance.   The  following  quotations  also  support  this  view. 

The  people,  therefore,  in  voting  for  the  holding  of  a  convention, 
not  only  limited  the  powers  of  the  convention  to  the  amendment  and 
revision,  of  the  constitution  of  1875,  but  required  that  its  action  be 
submitted  back  to  them.2 

This  enabling  act,  which  was  subsequently  adopted  by  the 
people,  prohibited,  etc.3 

The  people,  when  they  voted  for  the  holding  of  the  Convention, 
voted  for  it  to  be  held  "  in  accordance  with  Act  No.  52  of  1896," 
thus  instructing  their  delegates,  elected  at  the  same  time,  to  ob- 
serve the  limitations  placed  upon  the  power  of  the  Convention 
by  the  act  of  the  Legislature.4 

Considering  that  the  constitution  has  vested  no  authority  in 
the  legislature,  in  its  ordinary  action,  to  provide  by  law  for  sub- 
mitting to  the  people  the  expediency  of  calling  a  convention  of 
delegates,  for  the  purpose  of  revising  or  altering  the  constitution 
of  the  commonwealth,  it  is  difficult  to  give  an  opinion  upon  the 
question,  what  would  be  the  power  of  such  a  convention,  if  called. 
If,  however,  the  people  should,  by  the  terms  of  their  vote,  decide  to 
call  a  convention  of  delegates  to  consider  the  expediency  of  alter- 
ing the  constitution  in  some  particular  part  thereof,  we  are  of 
opinion  that  such  delegates  would  derive  their  whole  authority 
and  commission  from  such  vote;  and,  upon  the  general  princi- 
ples governing  the  delegation  of  power  and  authority,  they  would 

1  Braxton,  VTI  "Va.  Law  Reg.,"  100,  102. 

2  Ex  parte  Birmingham  Ry.  (1905),  145  Ala.  514,  529. 
8  La.  Ry.  v.  Madere  (1909),  124  La.  635,  641. 

4  State  v.  Capdevielle  (1901),  104  La.  561, 569. 


POPULAR  CONTROL  123 

have  no  right,  under  such  vote,  to  act  upon  and  propose  amend- 
ments in  other  parts  of  the  constitution  not  so  specified.1 

Act  No.  1  of  the  Extra  Session  of  1913  calling  for  a  conven- 
tion with  full  power  and  authority  to  frame  and  adopt,  without 
submission  to  the  people,  a  new  Constitution  of  the  state,  subject, 
however,  to  a  number  of  restrictions  enumerated  in  said  act,  hav- 
ing been  adopted  by  the  people,  constituted  a  mandate  to  the  con- 
vention of  1913.2 

The  author  knows  of  no  judicial  authority  in  opposition  to 
the  doctrine  that  the  people  can  restrict  the  convention  in 
advance. 

A  recent  article  in  the  Harvard  Law  Review,  however,  doubts 
the  practicability  of  the  popular  power  to  restrict  the  conven- 
tion by  adopting  a  convention  act  framed  by  the  legislature. 

Where  the  limitations  are  included  in  the  popular  call  for  a  con- 
vention, they  should  be  binding,  probably.  If  the  people  initiated 
the  call,  this  would  be  clear.  But  where,  as  is  more  usual,  the  legis- 
lature frames  the  call,  this  may  in  substance  give  the  legislature 
power  to  restrict.  The  only  way  in  which  the  people  could  avoid 
such  a  restriction  would  be  to  reject  all  proposals  containing  it, 
and  elect  a  legislature  which  would  submit  a  proposal  without  it; 
a  clumsy  and  inadequate  remedy.3 

In  other  words,  when  the  Legislature  frames  the  convention 
act,  the  people  must  either  adopt  the  restrictions  suggested  by 
the  legislature  or  else  give  up  having  any  convention  at  all. 

Thus  it  may  well  be  argued  that,  actually  if  not  theoretically, 
the  power  of  restriction  is  in  the  hands  of  the  legislature. 

Similarly  when,  under  the  Pennsylvania  theory,  the  people 
adopt  the  convention  act  by  merely  proceeding  under  it  to  the 
election  of  delegates.  The  Pennsylvania  court  points  out  that, 
even  in  such  a  case,  it  is  the  people  and  not  the  legislators  who 
restrict  the  convention. 

The  people  have  the  same  right  to  limit  the  powers  of  their  dele- 
gates that  they  have  to  bound  the  power  of  their  representatives. 
Each  are  representatives,  but  only  in  a  different  sphere.  It  is  sim- 
ply evasive  to  affirm  that  the  legislature  cannot  limit  the  right 

1  Opinion  of  Justices  (1833),  6  Cush.  573,  574-575. 

2  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  415. 

3  XXIX  "Harv.  Law  Rev.,"  530,  n. 


124  CONSTITUTIONAL  CONVENTIONS 

of  the  people  to  alter  or  reform  their  government.  Certainly  it 
cannot.  The  question  is  not  upon  the  power  of  the  legislature  to 
restrain  the  people,  but  upon  the  right  of  the  people,  by  the  in- 
strumentality of  the  law,  to  limit  their  delegates.  .  .  . 

Law  is  the  highest  form  of  a  people's  will  in  a  state  of  peaceful 
government.  When  a  people  act  through  a  law  the  act  is  theirs,  and 
the  fact  that  they  used  the  legislature  as  their  instrument  to  confer 
their  powers  makes  them  the  superiors  and  not  the  legislature.1 

And  the  South  Carolina  Court  agrees,  in  the  following  lan- 
guage: 

It  is  true,  the  legislature  can  not  limit  the  convention;  but  if 
the  people  elect  them  for  the  purpose  of  doing  a  specific  act  or 
duty  pointed  out  by  the  act  of  the  legislature,  the  act  would 
define  their  powers.  For  the  people  elect  in  reference  to  that  and 
nothing  else.2 

Yet  this  court  points  out  the  valuelessness  of  this  power. 

If,  by  their  agents,  (two  thirds  of  the  members  of  both  branches 
of  the  Legislature)  the  people  are  not  allowed  to  impose  restric- 
tions on  their  convention,  they  cannot  do  so  at  all.  It  will,  most 
evidently,  be  practically  impossible  for  them  to  do  so  by  their 
votes  at  elections.3 

Nevertheless,  for  the  purpose  of  preventing  subsequent  legis- 
lative tampering  with  a  convention  act  adopted  by  the  voters, 
or  under  which  they  have  acted,  it  is  well  worth  while  to  bear 
in  mind  the  distinction  that  the  people  can,  and  the  legislature 
cannot,  restrict  a  convention. 

Actual  instances  of  successful  restriction  of  the  convention 
by  the  people  are  as  follows.  We  have  already  seen  that  most 
of  the  instances  of  apparent  legislative  restriction,  cited  in  the 
preceding  chapter,  are  really  cases  of  popular  restriction.  Such, 
for  example,  were  the  restrictions  placed  on  the  Louisiana  con- 
vention of  1898  and  the  North  Carolina  convention  of  1835, 
and  recognized  as  binding  by  those  conventions.  The  Louisiana 
Supreme  Court  in  recognizing  the  binding  force  of  these  restric- 
tions, expressly  laid  it  to  the  popular  vote.4 

1  Wood's  Appeal  (1874),  75  Pa.  59,  71-72. 

2  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  222. 

3  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  273. 

4  La.  Ry.  v.  Madere  (1909),  124  La.  635,  641. 


POPULAR  CONTROL  125 

As  already  suggested,  instances  in  which  conventions  have 
overridden  popular  restrictions  may  be  explained  on  the  theory 
that  the  convention  supposed  them  to  be  merely  legislative 
restrictions;  for  the  doctrine  of  convention  sovereignty,  to  be 
discussed  in  the  next  chapter,  never  went  so  far  as  to  deny  the 
supremacy  of  the  people  over  their  agents,  the  convention. 
Although  conventions  have  assumed  that  the  people  have  dele- 
gated to  them  enormous  and  extraordinary  implied  powers, 
no  convention  has  ever  presumed  to  assert  squarely  that  the 
people  might  not  have  expressly  withheld  any  of  these  powers. 

May  the  people  amend  the  convention  act?  If  the  legislature 
submits  the  amendment  to  the  people,  the  legislature  becomes 
a  party  to  the  amendment  and  hence  assents  to  the  popular 
action.  Thus,  if  the  original  act  was  the  product  of  the  legis- 
lature alone,  the  legislature  assents  to  delegating  to  the  people 
the  right  to  amend  it,  even  if  we  were  to  assume  that  the  people 
would  not  have  this  right  inherently,  apart  from  the  legislative 
assent. 

If  the  legislature  withholds  this  assent,  the  people  may  amend 
the  act  by  popular  initiative  in  such  States  as  possess  that 
method  of  legislation;  for  even  if  the  convention  act  is  the 
creature  of  the  legislature  alone,  it  is  subject  to  amendment 
by  the  initiative  in  the  same  manner  as  any  other  legislative  act. 

If  the  original  act  was  the  act  of  the  people,  they  certainly 
have  the  right  to  change  or  recall  their  original  action.  All 
that  ever  stands  in  the  way  of  change  or  recall  of  legislative 
action  by  the  body  which  enacted  it  is  the  accrual  of  vested 
rights  under  the  original  enactment,  and  it  is  impossible  to 
conceive  that  anyone,  except  the  people  as  a  whole,  could 
acquire  a  vested  right  in  a  movement  to  initiate  a  change  of 
government. 

The  power  to  amend,  of  course,  carries  with  it  the  power  to 
repeal;  hence  the  people  may  at  any  time  abolish  a  constitu- 
tional convention  which  they  have  called  into  being.  Of  course, 
a  simpler  way  to  nullify  the  whole  action  of  the  convention, 
would  be  by  refusing  to  ratify  the  constitution  when  the  con- 
vention submits  it.  This  is  practically  a  universal  right,  for 
constitutions  are.  now  practically  universally  submitted  for 
popular  approval. 

There  is  one  more  way  in  which  the  electorate  can  control  the 


126  CONSTITUTIONAL  CONVENTIONS 

convention,  and  that  is  by  the  means  of  instructions  to  the 
delegates.  The  existence  of  this  right  depends  on  what  funda- 
mental theory  of  government  we  assume.  There  are  two 
contending  theories.  One,  which  has  already  been  stated  in  the 
chapter  on  fundamental  principles,1  and  which  has  the  support 
of  express  authority  in  many  of  our  Bills  of  Rights,  is  to  the 
effect  that  the  people  are  supreme  and  would  directly  govern 
themselves  if  it  were  convenient  and  expedient.  Direct  govern- 
ment not  being  convenient  and  expedient,  the  people  send  to 
their  various  legislative  bodies  representatives,  whose  duty  it 
is  to  represent  and  give  effect  to  the  point  of  view  of  their 
constituents. 

The  opposing,  un-American  theory  is  that  the  people  are 
unfit  to  rule;  that,  at  most,  they  are  just  barely  able  to  elect 
a  few  supermen  to  govern  them;  and  that  these  supermen,  to 
whom  are  delegated  the  powers  of  government,  owe  no  duty  to 
consult  the  wishes  of  their  incompetent  constituents. 

In  other  words,  either  we  live  under  a  representative  form 
of  government,  or  we  live  under  an  elective  aristocracy. 

It  is  strange  that  Jameson,  after  laying  down  in  an  early 
part  of  his  book  the  principle  that  representatives  must  be 
so  selected  as  to  make  it  reasonably  certain  that  the  will  of  the 
people  will  be  executed,2  should  in  a  later  part  of  his  book  scorn- 
fully deny  the  right  of  the  people  to  instruct  their  delegates.3 

The  binding  force  of  instructions  is  a  question  of  morals 
rather  than  of  law.  On  many  occasions  members  of  conventions 
have  had  such  a  high  moral  sense  that,  when  they  found  their 
instructions  conflicting  with  their  consciences,  they  have  re- 
signed from  the  convention  rather  than  violate  either.  Such 
was  the  case  of  Mr.  Vance  in  the  Ohio  convention  of  1850,  as 
related  by  Jameson,4  and  of  Messrs.  Worthington,  Carroll,  and 
Chase  in  the  Maryland  convention  of  1776,  as  related  by  Dodd.5 

Instructions  may  be  either  formal  or  informal.  Of  course, 
formal  instructions  are  preferable,  for  they  give  the  delegate 
an  official  expression  of  the  opinion  of  his  constituents.  But 
as  we  have  already  seen,  the  people  cannot  speak  officially  save 
through  their  electors  at  a  regularly  constituted  election,  and 
such  an  election  requires  legislative  assistance;    so  in  States 

1  See  pp.  11-12,  supra.         2  Jameson,  p.  1.         3  Jameson,  pp.  353-354. 
4  Jameson,  p.  353.  5  Dodd,  p.  12. 


POPULAR  CONTROL  127 

which  do  not  already  have  some  machinery  for  obtaining  a 
popular  expression  of  opinion,1  the  legislature  can  by  mere 
inaction  effectively  prevent  the  official  instruction  of  delegates, 
if  the  legislature  fears  that  the  expressed  sentiments  of  the  people 
will  turn  out  to  be  contrary  to  the  sentiments  which  the  legis- 
lature would  desire  the  convention  to  hold. 

Informal  instruction  may  be  had  by  means  of  mass  meetings, 
petitions,  etc.;  but,  as  we  have  already  seen,  the  question  of 
instructions  to  delegates  is  largely  a  moral  one.  A  delegate  who 
desires  to  represent  his  constituents  can  find  many  ways  of 
sounding  them  on  their  views;  perhaps  the  simplest  way  being 
to  declare  his  own  platform  in  advance  of  his  election,  and  let 
the  people  elect  or  reject  him  on  that  basis,  "to  the  end  that  it 
may  be  a  government  of  laws  and  not  of  men."  2 

1  For  example,  Mass.  St.  1913,  c.  819. 

2  Mass.  Decl.  of  Rts.,  Art.  XXX. 


Chapter  XI 
EXTRAORDINARY  POWERS  CLAIMED 

Many  conventions  have  claimed  the  right  to  exercise  powers 
far  beyond  the  mere  framing  of  constitutions  or  constitutional 
amendments.  It  was  to  combat  these  claims  of  convention 
sovereignty  that  Jameson  wrote  his  book  in  1867  and  that 
Braxton  published  his  Virginia  Law  Register  article  in  1901.1 

Jameson  met  the  claim  of  convention  sovereignty  with  the 
equally  untenable  claim  of  legislative  sovereignty.  Braxton 
met  it  with  the  much  more  tenable  theory  that  the  convention, 
like  any  other  governmental  body,  possessed  only  such  powers 
as  were  expressly  or  impliedly  delegated  to  it;  but  even  he  was 
guided  by  a  zeal  much  like  Jameson's2  and  admits  that  he  has 
proceeded  on  theory  rather  than  on  law  and  precedent.3 

The  conventions  of  the  Revolutionary  War  were  governed  by 
no  law  but  the  law  of  extreme  necessity.  In  order  to  maintain 
order  and  carry  the  war  to  a  successful  completion,  it  was 
necessary  that  they  should  exercise  governmental  power  as 
well  as  merely  frame  constitutions.  A  conflict  between  legis- 
lature and  convention  would  have  been  most  unfortunate  and 
disastrous.  Thus  in  some  States  the  legislatures  framed  the 
constitutions,  and  in  others  the  conventions  did  the  legislating, 
so  that  it  is  hard  to  classify  these  bodies  as  either  conventions 
or  legislatures.4  We  have  seen  that  the  independent  constitu- 
tional convention  originated  only  in  those  States  and  at  such 
times  as  were  free  from  military  invasion  and  danger  from  an 
aggressive  Tory  element. 

The  Pennsylvania  Supreme  Court  says,  with  respect  to  the 
doctrine  of  convention  sovereignty, 

Such  a  doctrine,  however  suited  to  revolutionary  times,  when 
new  governments  must  be  formed,  as  best  the  people  can,  is  wholly 

1  VII  "  Va.  Law  Reg.,"  79.  2  Dodd,  p.  vi. 

3  VII  "  Va.  Law  Reg./'  79,  97,  n.  2.  «  See  p.  3,  supra. 


EXTRAORDINARY   POWERS   CLAIMED  129 

unfitted  when  applied  to  a  state  of  peace  and  to  an  existing  govern- 
ment, instituted  by  the  people  themselves  and  guarded  by  a  well 
matured  bill  of  rights.1 

See  also  the  following: 

The  authorities  generally  except  ordinances,  and  even  Con- 
stitutions, enacted  in  time  of  war,  or  upon  the  heels  thereof,  from 
the  more  rigid  rule  as  applicable  to  those  adopted  in  time  of  peace 
and  tranquility.2 

No  argument  for  the  implied  power  of  absolute  sovereignty 
in  a  convention  can  be  drawn  from  revolutionary  times,  when 
necessity  begets  a  new  government.  Governments  thus  accepted 
and  ratified  by  silent  submission  afford  no  precedents  for  the  power 
of  a  convention  in  a  time  of  profound  tranquility,  and  for  a  people 
living  under  self-established,  safe  institutions.3 

When  the  first  American  conventions  were  held,  the  authority 
of  England  had  been  thrown  off  and  no  definite  form  of  government 
established  in  its  place.  Under  such  circumstances,  those  Con- 
ventions were  doubtless  justified  in  assuming  and  exercising  the 
most  absolute  sovereignty,  not  only  in  providing  a  new  Constitution 
and  political  system,  but  in  exercising,  themselves,  dictatorial 
powers,  until  they  were  ready  to  launch  their  new  governments. 
But  how  can  a  convention,  elected  and  assembled  according  to  law, 
with  all  the  functions  of  existing  government  in  full  operation, 
excuse  the  attempt  to  assume  the  unlimited  powers  of  a  Revolution- 
ary convention?  4 

Neither  are  the  secession  and  reconstruction  conventions  of 
the  Civil  War  period  very  valuable  as  precedents,  owing  to  the 
extreme  emergency  of  the  situation.    Dodd  says: 

It  is  doubtful  whether  the  Missouri  and  secession  conventions 
may  properly  be  called  constitutional  conventions  in  the  sense  in 
which  that  term  is  used  here;  they  were  called  to  consider  the 
relations  of  their  states  to  the  federal  government,  and  their  actions 
in  changing  constitutions  were  but  incidental  to  their  primary 
object,  which  was  not  the  framing  or  revision  of  constitutions.5 

The  conventions  held  in  the  southern  states  in  1865-66,  under 
proclamation  of  President  Johnson,  and  those  held  in  1867-68, 

1  Wood's  Appeal  (1874),  75  Pa.  59,  70. 

2  Ex  parte  Birmingham  Ry.  (1905),  145  Ala.  514,  532.   . 

3  Ellingham  v.  Dye  (1912),  178  Ind.  336,  379. 

4  Braxton,  VII  "Va.  Law  Reg.,"  79,  83. 
6  Dodd,  p.  105,  n.  55. 


130  CONSTITUTIONAL  CONVENTIONS 

under  congressional  reconstruction  acts,  were  vested  with  powers 
greater  than  ordinary  constitutional  conventions  in  states  with 
organized  governments,  inasmuch  as  they  were  authorized  not 
only  to  frame  constitutions  but  also  to  take  steps  necessary  for  the 
erection  of  state  governments.1 

Attention  should  also  be  called  to  the  fact  that  conventions 
called  in  territories  under  congressional  enabling  acts  ordinarily 
possess  wider  powers  than  conventions  called  in  organized  states, 
inasmuch  as  they  have  not  only  to  frame  a  constitution  but  also 
to  provide  for  the  organization  of  state  governments.2 

The  Cyclopedia  of  American  Government  sums  this  up  as 
follows: 

Actually,  conventions  assembled  during  the  early  revolutionary 
period,  and  in  Missouri  and  the  southern  states  during  the  Civil 
War,  exercised  wider  powers  than  those  just  referred  to  as  proper 
powers  of  constitutional  conventions.  But  it  has  already  been 
suggested  that  the  conventions  of  the  early  revolutionary  period 
were  primarily  provisional  governments  and  only  incidentally 
constitutional  conventions.  In  Missouri,  from  1861  to  1863,  and 
in  the  southern  states  during  the  same  period  conditions  were 
exceptional  and  to  a  certain  extent  justified  conventions  in 
acting  outside  of  what  was  their  more  proper  field.  The  recon- 
struction conventions  in  the  southern  states,  in  1865-66,  and 
1867-68,  although  called  not  only  to  frame  constitutions  but 
also  to  reestablish  state  governments,  did,  actually,  in  a  num- 
ber of  cases,  go  outside  of  their  proper  sphere  and  act  as  if 
they  were  bodies  possessing  all  the  capacities  of  the  regular 
legislatures.3 

Yet  even  reconstruction  conventions  have  been  held  to  be 
subject  to  the  same  inherent  restrictions  as  ordinary  conven- 
tions. This  is  true  of  the  attitude  of  the  Florida  Supreme  Court 
toward  the  convention  of  1865  in  that  State.  The  court  held 
invalid  a  clause  in  the  constitution  adopted  by  that  conven- 
tion because  it  thought  the  clause  not  within  the  convention's 
powers.  The  convention  had  been  called  "for  the  purpose  of 
altering  or  amending  the  constitution  .  .  .  and  with  authority 
to  exercise  within  the  limits  of  said  state  all  the  powers  necessary 
and  proper  to  enable  such  loyal  people  of  the  state  of  Florida 

1  Dodd,  pp.  106-107.  2  Dodd,  p.  107. 

8  I  "Cyc.  American  Government,"  430-431. 


EXTRAORDINARY  POWERS  CLAIMED  131 

to  restore  said  state  to  its  constitutional  relations  to  the  federal 
government." *    The  court  said : 

The  functions  of  the  convention  were  confined  to  the  objects  for 
which  it  was  elected,  the  presentation  of  an  amended  constitution, 
having  reference  to  the  declaration  of  certain  general  principles  and 
rules  of  government,  and  providing  for  the  organization  thereof  by 
the  election  of  the  necessary  officers.2 

Thus,  if  one  of  these  conventions  is  to  be  cited  as  a  precedent 
in  opposition  to  convention  sovereignty,  the  rest  of  them  might 
just  as  well  be  cited  in  support  of  this  doctrine;  the  objection 
being  merely  to  the  weight,  rather  than  to  the  admissibility  of 
the  evidence. 

The  doctrine  of  convention  sovereignty  has  been  often  pro- 
pounded, particularly  by  members  of  conventions.  The  fol- 
lowing statements  of  this  doctrine  may  prove  instructive: 

In  the  New  York  convention  of  1821  a  Mr.  Livingstone  (it 
does  not  appear  whether  Peter  R.  or  Alexander)  said: 

We  have  been  told  by  the  honorable  gentleman  from  Albany 
(Mr.  Van  Vechten)  that  we  were  not  sent  here  to  deprive  any  por- 
tion of  the  community  of  their  vested  rights.  Sir,  the  people  are 
here  themselves.  They  are  present  by  their  delegates.  No  re- 
striction limits  our  proceedings.  What  are  these  vested  rights? 
Sir,  we  are  standing  upon  the  foundations  of  society.  The  ele- 
ments of  government  are  scattered  around  us.  All  rights  are 
buried;  and  from  the  shoots  that  spring  from  their  grave  we  are 
to  weave  a  bower  that  shall  overshadow  and  protect  our  liberties.3 

The  Hon.  George  M.  Dallas,  in  a  letter  published  in  "The 
Pennsylvanian"  of  September  5,  1836,  said: 

A  Convention  is  the  provided  machinery  of  peaceful  revolution. 
It  is  the  civilized  substitute  for  intestine  war.  .  .  .  When  ours 
shall  assemble,  it  will  possess,  within  the  territory  of  Pennsylvania, 
every  attribute  of  absolute  sovereignty,  except  such  as  may  have 
been  yielded  and  are  embodied  in  the  Constitution  of  the  United 
States.  What  may  it  not  do?  It  may  reorganize  our  entire  system 
of  social  existence,  terminating  and  proscribing  what  is  deemed 
injurious,  and  establishing  what  is  preferred.  It  might  restore  the 
institution  of  slavery  among  us;  it  might  make  our  penal  code  as 

1  Dodd,  p.  107,  n.  59. 

2  Bradford  v.  Shine  (1871),  13  Fla.  393,  412-413. 

3  Jameson,  p.  303. 


132  CONSTITUTIONAL   CONVENTIONS 

bloody  as  that  of  Draco;  it  might  withdraw  the  charters  of  the 
cities;  it  might  supersede  a  standing  judiciary  by  a  scheme  of  oc- 
casional arbitration  and  umpirage;  it  might  prohibit  particular 
professions  or  trades;  it  might  permanently  suspend  the  privilege 
of  the  writ  of  habeas  corpus,  and  take  from  us  .  .  .  the  trial  by  jury. 
These  are  fearful  matters,  of  which  intelligent  and  virtuous  freemen 
can  never  be  guilty,  and  I  mention  them  merely  as  illustrations  of 
the  inherent  and  almost  boundless  power  of  a  Convention.1 

So,  in  the  Illinois  convention  of  1847,  Onslow  Peters  said: 

He  had  and  would  continue  to  vote  against  any  and  every  propo- 
sition which  would  recognize  any  restriction  of  the  powers  of  this 
Convention.  We  are  .  .  .  the  sovereignty  of  the  State.  We  are  what 
the  people  of  the  State  would  be,  if  they  were  congregated  here  in 
one  mass  meeting.  We  are  what  Louis  XIV  said  he  was,  *  We  are 
the  State/  We  can  trample  the  Constitution  under  our  feet  as 
waste  paper,  and  no  one  can  call  us  to  account  save  the  people.2 

The  Committee  on  Printing  of  the  Illinois  convention  of  1862 
said,  in  one  of  their  reports: 

When  the  people,  therefore,  have  elected  delegates,  .  .  .  and  they 
have  assembled  and  organized,  then  a  peaceable  revolution  of  the 
State  government,  so  far  as  the  same  may  be  effected  by  amendments 
of  the  Constitution,  has  been  entered  upon,  limited  only  by  the 
Federal  Constitution.  All  power  incident  to  the  great  object  of  the 
Convention  belongs  to  it.  It  is  a  virtual  assemblage  of  the  people 
of  the  State,  sovereign  within  its  boundaries,  as  to  all  matters  con- 
nected with  the  happiness,  prosperity  and  freedom  of  the  citizens, 
and  supreme  in  the  exercise  of  all  power  necessary  to  the  estab- 
lishment of  a  free  constitutional  government,  except  as  restrained 
by  the  Constitution  of  the  United  States.3 

In  a  speech  in  the  same  body,  General  Singleton  said : 

Sir,  that  this  Convention  of  the  people  is  sovereign,  possessed 
of  sovereign  power,  is  as  true  as  any  proposition  can  be.  If  the 
State  is  sovereign  the  Convention  is  sovereign.  If  this  Convention 
here  does  not  represent  the  power  of  the  people,  where  can  you 
find  its  representative?  If  sovereign  power  does  not  reside  in  this 
body,  there  is  no  such  thing  as  sovereignty.4 

The  Pennsylvania  convention  of  1873  replied  to  the  decision 
of  the  Supreme  Court  in  Wells  v.  Bain,  which  appeared  to  the 

1  Jameson,  pp.  303-304.  2  Jameson,  p.  304. 

*  Jameson,  p.  304.  *  Jameson,  p.  304. 


EXTRAORDINARY  POWERS  CLAIMED  133 

convention  to  be  an  assertion  of  legislative  supremacy,  by 
passing  a  resolution  in  which  they  declared  that  the  conven- 
tion, subject  to  the  Constitution  of  the  United  States,  is  answer- 
able only  to  the  people  from  whom  it  derives  its  power.1 

It  may  be  because  of  this  resolution  that  the  Supreme  Court 
of  Pennsylvania  in  the  later  case  of  Wood's  Appeal  shifted  its 
ground  from  an  assertion  of  legislative  supremacy  to  an  asser- 
tion of  popular  supremacy.2 

Benjamin  F.  Butler  asserted  in  the  Massachusetts  convention 
of  1853: 

We  are  told  that  we  assume  the  power,  and  that  we  are  merely 
the  agents  and  attorneys,  of  the  people.  Sir,  we  are  the  delegates 
of  the  people,  chosen  to  act  in  their  stead.  We  have  the  same 
power  and  the  same  right,  within  the  scope  of  the  business  assigned 
to  us,  that  they  would  have,  were  they  all  convened  in  this  hall.3 

Dodd  points  out  that  the  doctrine  of  convention  sovereignty 
has  attained  the  dignity  of  being  embodied  in  dicta  by  the 
highest  courts  of  several  States.4  Thus  the  Supreme  Court  of 
Texas  has  said: 

So  in  case  of  a  peaceful  change  of  government  by  the  people  as- 
sembled in  conventior  for  the  purpose  of  forming  a  constitution. 
...  It  would  be  in  the  power  of  such  convention  to  take  away  or 
destroy  individual  rights,  but  such  an  intention  would  never  be 
presumed.5 

So  also  the  Supreme  Court  of  Mississippi: 

We  have  spoken  of  the  constitutional  convention  as  a  sovereign 
body,  and  that  characterization  perfectly  defines  the  correct  view, 
in  our  opinion,  of  the  real  nature  of  that  august  assembly.  It  is 
the  highest  legislative  body  known  to  freemen  in  a  representative 
government.  It  is  supreme  in  its  sphere.  It  wields  the  powers  of 
sovereignty,  specially  delegated  to  it  for  the  purpose  and  occasion 
by  the  whole  electoral  body,  for  the  good  of  the  whole  common- 
wealth. The  sole  limitation  upon  its  power  is,  that  no  change  in 
the  form  of  government  shall  be  done  or  attempted.    The  spirit  of 

1  Jameson,  p.  410. 

2  See  pp.  109-110,  supra. 

3  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  78.  And  cf.  Deb.  Ky.  Conv.  1849, 
p.  863;  Deb.  Ala.  Conv.  1861,  p.  114;  Deb.  Va.  Conv.  1901,  Vol.  I,  pp.  63, 
77,  83;  Vol.  II,  p.  3132;  Amasa  M.  Eaton  in  XIII  "Harv.  Law  Rev.,"  284. 

4  Dodd,  p.  78,  n.  10. 

5  McMullm  v.  Hodge  (1849),  5  Tex.  34,  73. 


134  CONSTITUTIONAL  CONVENTIONS 

republicanism  must  breathe  through  every  part  of  the  frame-work, 
but  the  particular  fashioning  of  the  parts  of  this  frame-work  is 
confined  to  the  wisdom,  the  faithfulness  and  the  patriotism  of  the 
great  convocation  representing  the  people  in  their  sovereignty.1 

And  the  Supreme  Court  of  Michigan: 

The  convention  is~an  independent  and  sovereign  body.2 

Jameson  sums  up  the  history  of  this  doctrine  as  follows: 

The  records  of  our  conventions  reveal  no  trace  of  it  earlier  than 
the  New  York  convention  of  1821,  from  which  an  extract  has 
been  given.  In  1829  it  again  made  its  appearance  in  the  Virginia 
convention  but  obscurely  and  hesitatingly.  .  .  .  The  next  appear- 
ance was  in  the  letter  of  Mr.  Dallas,  from  which  an  extract  has 
been  given  above,  and  in  the  convention  held  in  Pennsylvania  in 
the  following  year,  —  the  latter  the  fruit  of  the  seed  sown  by  that 
gentleman.  .  .  .  Ten  years  afterwards,  this  theory  was  enun- 
ciated, in  the  terms  we  have  seen  above,  by  Mr.  Peters,  in  the 
Illinois  Convention  of  1847.  In  1849,  it  made  its  appearance  in  the 
Kentucky  Convention,  and  four  years  later,  in  that  of  Massachu- 
setts, under  the  patronage  of  Messrs.  Hallett  and  Butler.  In  1860- 
1861,  it  produced  its  legitimate  fruits  in  the  so-called  secession  of 
the  eleven  slaveholding  States  from  the  Union,  a  movement  ma- 
tured and  consummated  by  its  aid;  and  finally,  in  1862,  its  echo 
was  heard  in  the  free  State  of  Illinois,  some  members  of  whose 
Convention  unwisely  seized  upon  a  time  of  national  peril  to  en- 
dorse a  disorganizing  dogma,  in  the  general  adoption  of  which  at 
the  South  that  peril  had  originated.3 

Jameson  also  lays  the  spontaneous  conventions  of  Maryland 
in  1837,  and  Rhode  Island  in  1841  to  this  dogma,  as  he  calls  it.4 
It  is  probable,  however,  that  he  is  unduly  exercised.  Dodd  says 
in  this  connection: 

Judge  Jameson's  work  may  be  said  to  have  been  written  to  dis- 
prove the  theory  that  a  convention  has  sovereign  power,  and  under 
these  conditions  the  theory  assumed  in  his  mind  a  much  more 
important  position  than  it  ever  attained  in  fact.  The  theory  of 
conventional  sovereignty  was  advanced  by  speakers  before  sev- 
eral conventions,  beginning  with  that  of  New  York  in  1821,  but  no 

1  Sproule  v.  Fredericks  (1892),  69  Miss.  898,  904. 

2  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  340-341. 

3  Jameson,  pp.  307-308. 

4  Jameson,  p.  309. 


EXTRAORDINARY  POWERS  CLAIMED  135 

convention  seems  ever  to  have  attempted  to  act  upon  the  theory 
or  even  to  have  endorsed  it.  The  report  made  to  the  Illinois  con- 
vention of  1862  and  the  resolutions  adopted  by  the  Pennsylvania 
convention  of  1873  went  little  if  any  further  than  to  assert  the 
convention's  independence  of  the  legislative  and  other  organs  of 
the  existing  state  government.1 

The  full  quotation  from  Gen.  Butler,  even  as  given  by  Jame- 
son shows  that  Butler  was  not  advocating  convention  sover- 
eignty, for  Butler  said,  "  In  my  judgment,  we  have  every  inci- 
dental power  necessary  to  do  the  business  of  the  people/ ' 2 
Incidental  and  emergency  powers,  and  independence  of  the  leg- 
islature are  all  that  has  ever  been  seriously  claimed  in  the  line 
of  convention  sovereignty;  but  Braxton  and  Jameson  construct 
men  of  straw  out  of  the  oratorical  utterances  of  convention 
members,  and  then  proceed  valiantly  to  knock  these  straw-men 
down. 

Nevertheless,  lest  some  one  might  seriously  raise  the  claim  of 
convention  sovereignty,  beyond  mere  incidental  powers  and 
freedom  from  legislative  control,  it  may  be  well  to  select  the 
following  line  of  argument  in  opposition: 

We  are  told  they  were  elected  by  the  people.  This,  however,  is 
not  enough.  For  what  purpose  were  they  elected  by  the  people? 
To  represent  their  sovereignty.  But  was  it  to  represent  their 
sovereignty  to  every  purpose,  or  was  it  for  some  specific  purpose? 
To  this  no  other  answer  can  be  given  than  the  act  of  the  legislature 
under  which  the  convention  was  assembled.  Certainly,  the  people 
may,  if  they  will,  elect  delegates  for  a  particular  purpose,  without 
conferring  on  them  all  their  authority.  To  deny  this,  would  be  to 
detract  from  the  power  of  the  people,  and  to  impose  on  them  a 
most  inconvenient  and  dangerous  disability.3 

No  doubt  there  might  be  a  convention  unlimited  in  its  powers, 
and  representing  all  the  authority  of  the  people.  But  when  they 
are  about  to  confer  this  high  authority,  certainly  they  ought  to  be 
aware  that  they  are  doing  so.4 

If,  by  a  mere  determination  of  the  people  to  call  a  convention, 
whether  it  be  by  a  vote  or  otherwise,  the  entire  sovereignty  of  the 
people  passes  ipso  facto  into  a  body  of  deputies  or  attorneys,  so 

1  Dodd,  pp.  77-78,  n.  10. 

2  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  78;  Jameson,  p.  334. 

8  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  270-271. 
«  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  271-272. 


136  CONSTITUTIONAL  CONVENTIONS 

that  these  deputies  can  without  ratification,  alter  a  government 
and  abolish  its  bill  of  rights  at  pleasure,  and  impose  at  will  a  new 
government  upon  the  people  without  restraint  upon  the  governing 
power,  no  true  liberty  remains.  Then  the  servants  sit  above  their 
masters  by  the  merest  imputation,  and  a  people's  welfare  must 
always  rest  upon  the  transient  circumstances  of  the  hour,  which 
produce  the  convention  and  the  accidental  character  of  the  ma- 
jority which  controls  it.1 

The  present  inquiry  is  not  how  much  power  may  be  conferred 
by  law,  but  what  power  was  conferred  on  this  convention?2 

In  the  appointment  of  delegates  to  that  convention,  the  people 
acted  upon  the  faith  that  they  were  to  be  charged  with  those 
duties  and  no  others,  and  the  assumption  of  any  other  powers  than 
those  necessary  to  the  attainment  of  the  objects  in  view,  would 
have  been  a  violation  of  the  trust  reposed  in  them,  and  an  usurpa- 
tion of  the  rights  of  the  people.3 

It  will  not  do  to  assert  that  the  whole  original  power  of  the 
people  was  conferred  by  the  election.  .  .  .  The  law  was  the  war- 
rant of  their  election,  and  expressed  the  very  terms  chosen  and 
adopted  by  the  people,  under  which  they  delegated  their  power  to 
these  agents.  The  delegates  possess  no  inherent  power,  and  when 
convened  by  the  law  at  the  time  and  place  fixed  in  it,  sit  and  act 
under  it,  as  their  letter  of  attorney  from  the  people  themselves,  and 
can  know  and  discover  the  will  of  the  people  only  so  far  as  they  can 
discern  it  through  this  the  only  warrant  they  have  ever  received 
to  act  for  the  people.  If  they  claim  through  any  other  source,  they 
must  be  able  to  point  to  it.4 

Can  it  be  supposed  that  the  good  people  of  this  State  thought 
that  in  the  appointment  of  delegates  to  that  convention,  they  were 
conferring  on  them  the  authority  to  transfer  their  allegiance  to  the 
grand  Turk,  or  the  Emperor  of  Russia,  or  to  indulge  in  any  other 
caprice  they  might  think  proper?  5 

Did  the  people  by  this  act,  without  an  expressed  intent,  and  by 
mere  inference,  intend  to  abdicate  all  their  own  power, their  rights, 
their  interests,  and  their  duty  to  each  other  in  favor  of  a  body  of 
mere  agents,  and  to  confer  upon  them,  by  a  blank  warrant,  the 
absolute  power  to  dictate  their  institutions,  and  to  determine 

1  Wood's  Appeal  (1874),  75  Pa.  59,  70. 

2  Wells  v.  Bain  (1872),  75  Pa.  39,  50. 

8  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  242. 

■  Wells  v.  Bain  (1872),  75  Pa.  39,  48. 

«  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  242. 


<  EXTRAORDINARY  POWERS  CLAIMED  137 

finally  upon  all  their  most  cherished  interests?  If  the  argument 
be  admitted  for  an  instant  that  because  nothing  was  said  in  this  law 
on  the  subject  of  delegation,  therefore,  greater  powers  were  con- 
ferred than  were  granted  in  the  subsequent  Act  of  1872,  then  all 
power  belonging  to  the  people  passed,  and  they  did  grant  by  it  the 
enormous  power  stated.  Then,  by  a  covert  intent,  hidden  in  the 
folds  of  this  act,  the  people  delegated  power  to  repeal  all  laws, 
abolish  all  institutions,  and  drive  from  place  the  legislature,  the 
governor,  the  judges,  and  every  officer  of  the  Commonwealth, 
without  submitting  the  work  of  the  delegates  to  the  ratification  of 
the  people.1 

In  considering  this  question  of  delegated  power  some  are  apt  to 
forget  that  the  people  are  already  under  a  constitution  and  an  exist- 
ing frame  of  government  instituted  by  themselves,  which  stand  as 
barriers  to  the  exercise  of  the  original  powers  of  the  people,  unless 
in  an  authorized  form.2 

The  regular  Government  continues  in  full  force,  de  jure  as  well 
as  de  facto,  uninterrupted  and  unaffected,  even  in  theory,  by  the 
existing  Constitutional  Convention,  until  a  new  Constitution  is 
actually  and  legally  adopted. 

A  Constitutional  Convention  is  not  the  People,  with  sovereign 
and  unlimited  powers,  but  a  mere  Committee  of  the  People, 
with  only  such  limited  powers  as  the  People  may  expressly  bestow 
upon  them,  the  granting  of  which  powers  will  be  strictly  construed 
against  the  Convention.3 

Three  and  a  half  or  four  millions  of  people  cannot  assemble 
themselves  together  in  their  primary  capacity  —  they  can  act 
only  through  constituted  agencies.  No  one  is  entitled  to  represent 
them  unless  he  can  show  their  warrant  —  how  and  when  he  was 
constituted  their  agent.4 

Upon  the  common-place  principle  that  the  authority  of  the 
agent  is  limited  by  the  powers  conferred  on  him  by  the  principal, 
the  powers  of  the  delegates  were  limited  to  the  objects  designated 
by  the  act  under  which  the  convention  was  called.5 

Beyond  a  general  purpose  of  revising  the  constitution,  the  au- 
thority of  the  delegates  is  not  set  forth.    They  are  not  endowed  with 

1  Wells  v.  Bain  (1872),  75  Pa.  39,  50-51. 

2  Wells  v.  Bain  (1872),  75  Pa.  39,  53. 

3  Braxton,  VII  "  Va.  Law  Reg.,"  79,  96. 

4  Wells  v.  Bain  (1872),  75  Pa.  39, 53. 

6  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  242. 


138  CONSTITUTIONAL  CONVENTIONS 

the  entire  sovereignty  of  the  state.    Their  agency,  like  every  branch 
of  the  public  service,  is  marked  on  all  sides  by  fixed  bounds.1 

Let  us  examine  in  detail  the  few  instances  in  which  conven- 
tions have  assumed  to  interfere  with  the  other  branches  of  the 
government.  This  {interference  is,  of  course,  illegal  if  we  hold 
to  the  theory  that  the  convention  is  a  fourth  branch  of  the  gov- 
ernment, and  that  the  four  branches  of  government  are  shut 
up  in  separate  compartments.2 

First  let  us  consider  attempts  by  conventions  to  interfere  with 
the  executive  department.     Jameson  says: 

That  body  cannot  remove  from  office,  or  instruct  those  holding 
office,  by  any  direct  proceeding,  as  by  resolution  or  vote  applying 
to  particular  cases.  It  is  its  business  to  frame  a  written  Constitu- 
tion; at  most,  to  enact  one.  It  has  no  power,  under  such  a  commis- 
sion, to  discharge  the  public  servants,  except  so  far  as  their  dis- 
charge might  result  from  the  performance  of  its  acknowledged  duty.3 

Jameson  divides  convention  interference  with  the  executive 
into  three  questions  as  follows: 

1.  Can  a  Convention  appoint  officers  to  fill  vacancies  in  the 
various  governmental  departments? 

2.  Can  it  eject  from  office  persons  holding  positions  in  the 
government  by  regular  election  or  appointment? 

3.  Can  it  direct  such  officers  in  the  discharge  of  their  duties?  4 

The  Missouri  convention  of  1865,  called  by  the  legislature,  but 
elected  by  the  people,  prepared  various  amendments  which  were 
submitted  to  the  people  and  adopted;  and  in  addition  it  adopted 
and  put  into  operation,  without  submission  to  the  people,  an 
ordinance  abolishing  slavery  in  the  State,  and  an  ordinance 
vacating  certain  judicial  and  executive  offices  and  authorizing 
the  Governor  to  fill  the  vacancies.  The  convention  had  only 
been  authorized  to  amend  the  constitution.5  It  is  clear  that  the 
convention  itself  did  not  regard  these  acts  as  an  amendment  of 
the  constitution,  for  it  submitted  all  the  true  amendments  to  the 
people. 

The  convention  of  1861   in  the  same  State  had  removed 

1  Opinion  of  Justices  (1889),  76  N.  H.  612,  617. 

2  See  pp.  89-91,  supra. 

9  Jameson,  p.  321.  4  Jameson,  p.  320.  6  Jameson,  pp.  322-324. 


EXTRAORDINARY  POWERS  CLAIMED  139 

various  executive  and  legislative  officers  and  had  repealed  cer- 
tain acts  of  the  legislature.     It  also  had  passed  considerable 
legislation  for  the  government  of  the  State.1 
Jameson  comments  as  follows: 

All  these  acts  were  clearly  usurpations  of  authority  properly  be- 
longing to  other  departments  of  the  State  government.  That 
that  government  was  in  treasonable  hands  might  justify  the  Con- 
vention, on  moral  grounds,  in  seizing,  by  revolutionary  force, 
powers  not  its  own,  but  could  not  alter  the  legal  character  of  its 
acts.  In  1865,  the  same  necessity  perhaps  existed,  and,  if  so, 
mighty  justify  acts  clearly  of  the  same  general  character,  legally 
considered,  as  those  of  its  predecessor  of  1861.  But,  as  I  have  said, 
upon  this  question  I  pass  no  opinion.  If  the  acts  characterized 
as  revolutionary  were  strictly  necessary,  it  was  not  the  first  time  in 
history  that  a  party,  having  morally  and  politically  the  better 
case,  had  legally  the  worst  of  the  argument.2 

These  Missouri  cases  are  the  only  examples  of  attempted 
usurpation  of  executive  powers  cited  by  Jameson,  up  to  1887. 
No  further  examples  are  cited  by  Braxton  up  to  1901,  or  by 
,  Dodd  up  to  1910,  and  the  author  knows  of  none  since  then. 
Like  the  conventions  of  the  Revolutionary  War,  these  conven- 
tions possessed  the  justification  of  extreme  necessity  and  hence 
are  really  not  precedents. 

The  conflicts  with  the  judiciary,  except  as  aforesaid,  have  all 
been  cases  of  interference  by,  rather  than  interference  withy 
the  courts. 

Jameson  introduces  the  subject  of  interference  with  the  legis- 
lature by  the  following  summing  up  of  what  has  gone  before. 

With  the  Executive  and  Judiciary  of  a  State,  a  Convention  has, 
in  the  ordinary  and  normal  operation  of  its  government,  no  direct 
relations.  Neither  of  these  departments  has  any  thing  to  do  with 
calling  it  together,  except  in  perhaps  rare  cases,  in  which  some 
specific  and  extraordinary  duty  has  been  prescribed  to  it  by  the 
legislature;  and  neither  of  them,  while  a  Convention  is  in  session, 
has  any  occasion  to  come  in  contact  with  it.  The  only  cases  in 
which  either  of  those  departments  could  be  brought  into  direct 
relations  with  that  body,  would  be  where  the  latter  should  at- 
tempt to  direct  it  in  the  discharge  of  its  constitutional  duties,  — 
a  case  which  has  already  been  considered,  —  or  in  which  one  of  the 

1  Jameson,  p.  325.  2  Jameson,  p.  325. 


140  CONSTITUTIONAL  CONVENTIONS 

former  should  attempt  to  revolve  outside  its  proper  orbit,  and  thus 
bring  about  collisions  with  the  latter.  Inasmuch,  however,  as 
neither  of  the  three  could  with  any  show  of  right  do  any  act  which 
should  result  in  such  a  collision,  except  when  acting  in  assumed 
conformity  to  some  law,  giving  to  usurpation  an  apparent  legal- 
ity, no  questions  could  arise  between  them  as  to  their  respective 
powers,  which  would  not  resolve  themselves  into  questions  as 
to  the  relative  powers  of  Conventions  and  legislatures,  the  only 
law-making  bodies,  save  the  electors,  which  have  been  already  con- 
sidered, known  to  our  Constitutions.  I  shall  therefore  spend  no 
time  in  considering  the  relations  of  those  two  departments  to 
Conventions,  but  pass  to  those  which  the  latter  bear  to  legislatures, 
and  the  powers  resulting  therefrom,  which  belong  to  each  of  those 
bodies.1 

Dodd's  collection  of  examples  of  legislation  by  conventions 2 
is  rather  misleading,  as  he  frequently  refers  to  ordinances  which 
are  clearly  within  the  constitutional  powers  of  the  convention, 
as  being  ordinances  of  a  legislative  character.  It  is  necessary 
to  analyze  each  of  the  bits  of  alleged  legislation  passed  by  con- 
ventions, in  order  to  determine  whether  it  be  of  a  strict  legis- 
lative nature,  or  merely  incidental  to  the  proper  duties  of  the 
convention. 

Instances  of  pure  legislation  have  been  as  follows.  The  South 
Carolina  convention  of  1895  established  a  new  county,  paid 
interest  on  the  public  debt,  put  the  counties  on  a  cash  basis, 
and  passed  three  statutes  validating  the  subscriptions  for  stock 
in  several  railroads.3  In  fact,  this  convention  got  so  carried 
away  with  the  idea  of  legislating,  that  one  of  the  members 
moved  "that  there  shall  be  no  session  of  the  legislature  this 
year,  but  the  convention  shall  do  its  work  in  its  place.' ' 4 
.  The  Mississippi  convention  of  1890  enacted  a  general  election 
law,  established  a  commission  to  collect  information  for  the 
next  legislature  on  a  certain  subject,  created  the  office  of  land 
commissioner,  validated  the  titles  to  certain  land  which  had 
been  homesteaded,  issued  bonds  to  construct  levees,  and  ex- 
empted factories  from  taxation.5 

1  Jameson,  pp.  355-356. 

2  Dodd,  p.  108. 

3  Thorpe,  Vol.  VI,  pp.  3345-3354. 

*  Amasa  M.  Eaton  in  XXXI  "Am.  Law  Rev.,"  198,  210. 
B  IV  Thorpe,  2129-2137. 


EXTRAORDINARY  POWERS  CLAIMED  141 

The  Louisiana  convention  of  1898  authorized  the  mobiliza- 
tion of  state  troops.1 

We  have  already  referred  to  the  action  of  the  Missouri  con- 
vention of  I860  in  removing  certain  of  the  State  officers  and 
providing  for  the  filling  of  vacancies.  This  convention  also 
adopted  and  put  into  operation,  without  submission  to  the 
people,  an  ordinance  abolishing  slavery  in  Missouri.2 

The  Supreme  Court  of  Alabama  sustained  the  power  of  the 
convention  of  1865  to  act  as  a  provisional  legislature.3  This 
Supreme  Court  at  first  took  the  same  view  with  reference  to 
the  convention  of  1867-1868,  but  later  held  that  this  conven- 
tion did  not  have  legislative  power.4 

The  South  Carolina  convention  of  1868  annulled  certain 
earlier  legislative  acts  under  which  contract  rights  had  been 
acquired.5  The  Supreme  Court  of  South  Carolina  declared  this 
ordinance  void  as  imparing  the  obligation  of  contracts,  but  de- 
livered the  following  dictum: 

It  is  not  easy  to  define  the  powers  which  a  convention  of 
people  may  rightfully  exercise.  It  has  been  doubted  whether 
any  act  of  mere  legislation  in  a  state  having  a  constitution  can 
be  passed  by  a  convention  called  for  a  particular  and  different 
purpose.  The  body  is  not  constituted  with  two  houses,  and  in 
other  respects  lacks  the  organization  necessary  for  ordinary  legis- 
lation. The  convention  of  1868  was  not  called  for  a  purpose 
fairly  embracing  the  subject  of  this  ordinance,  which  was  never 
submitted  to  the  people.6 

The  Alabama  convention  of  1901  provided  by  ordinance  that 
a  term  of  court  should  be  held  at  Pell  City.7  The  Supreme  Court 
held  this  ordinance  void  because  not  submitted  to  the  people.8 

The  territorial  convention  of  Oklahoma  provided  in  its 
constitution  for  dividing  Woods  County  into  three  counties. 
It  also  passed  an  ordinance  to  carry  this  provision  into  effect 
and  tried  to  enforce  the  ordinance  before  the  adoption  of  the 

1  Thorpe,  Vol.  DI,  p.  1596. 

8  Jameson,  p.  322. 

»  Cases  cited  in  Dodd,  p.  110,  n.  66. 

•  Plowman  v.  Thornton  (1875),  52  Ala.  559,  569. 

•  Dodd,  p.  112. 

•  GMes  v.  Raaroad  (1879),  13  S.  C.  228,  242. 
»  Dodd,  pp.  113-114. 

•  Ex  parte  Birmingham  Ry.  (1905),  145  Ala.  514,  519. 


142  CONSTITUTIONAL  CONVENTIONS 

constitution  by  the  people.1    The  Supreme  Court  of  the  terri- 
tory held: 

The  convention  has  no  power  to  enact  laws;  it  possesses  no 
legislative  powers  except  such  as  may  be  necessary  to  exercise  in 
prescribing  by  ordinance  the  methods  and  procedure  for  obtain- 
ing the  expression  of  the  electors  upon  the  ratification  of  the  pro- 
posed constitution,  and  for  the  election  of  the  officers  provided 
for  in  the  constitution.2 

But  the  court  found  that  this  particular  ordinance  was  within 
the  implied  powers  of  the  convention. 
Compare: 

The  passage  of  an  ordinance,  then,  to  raise  revenue  was  an 
assumption  of  power  by  the  convention,  that  was  never  ratified 
by  the  people  of  the  state.3 

Some  conventions  seek  to  validate  their  purely  legislative 
ordinances  by  including  in  the  constitution  which  they  prepare, 
a  provision  to  the  effect  that  all  ordinances  passed  by  the  con- 
vention shall  have  the  same  force  as  though  included  in  the 
constitution.  This  was  the  case  in  the  South  Carolina  conven- 
tion of  1895,  which  passed  a  large  number  of  purely  legislative 
ordinances,  as  well  as  several  ordinances  relating  to  the  duties 
of  the  convention.4 

The  Mississippi  constitution  of  1890  declared  void  all  laws 
repugnant  to  the  ordinances  of  the  convention,  thus  giving  these 
ordinances  validity.5 

The  Louisiana  constitution  of  1898  expressly  ratified  the  or- 
dinances providing  for  loans  for  the  mobilization  of  troops  and 
for  the  expenses  of  the  convention.6 

Of  course,  a  simple  procedure  for  a  convention  which  wishes 
to  legislate  would  be  actually  to  include  the  legislation  in  the 
constitution.  That  has  frequently  been  done  with  unquestioned 
success;  in  fact  many  of  our  State  constitutions  to-day  consist 
for  the  most  part  of  legislative  details  which  ought  to  have  been 
left  to  the  ordinary  legislature. 

1  Dodd,  pp.  114-115. 

2  Franz  v.  Autry  (1907),  18  Okla.  561,  631. 
8  Bragg  v.  Tuffts  (1887),  49  Ark.  554,  561. 
4  Art.  XVII,  §  11. 

6  §  275.  6  Art.  326. 


EXTRAORDINARY  POWERS  CLAIMED  143 

For  example: 

The  constitution  of  Oklahoma  contains  eleven  pages  of  legisla- 
tion relating  to  the  subject  of  corporations  alone,  besides  much 
more  ordinary  legislative  matter  relating  to  homesteads  and  ex- 
emptions, banks  and  banking,  insurance,  the  employment  of  chil- 
dren, and  education.  It  forbids  plural  marriages,  fixes  the  maxi- 
mum rate  of  interest,  abolishes  the  so-called  fellow-servant  doctrine 
and  regulates  the  use  of  the  contributory-negligence  and  assump- 
tion-of-risk  doctrines  as  defenses  in  certain  suits  for  damages, 
establishes  the  eight-hour  day  on  public  works  and  in  coal  mines, 
and  determines  the  test  for  the  purity  of  kerosene  oil.  The  con- 
vention also  provided  for  the  separate  submission  to  the  electorate 
of  a  proposal  to  prohibit  the  sale  of  intoxicating  liquors.  The  acts 
of  the  Oklahoma  convention  of  1907  are  merely  the  most  striking 
evidence  of  the  growing  tendency  throughout  the  states,  especially 
in  the  South  and  West,  to  transform  the  constitutional  convention 
into  an  ordinary  legislative  body.1 

Such  provisions  are  so  numerous  that  they  need  no  mention. 
Dodd  says: 

The  constitutional  convention  is  a  legislative  body,  although 
with  limited  functions,  and  it  is  within  the  sole  determination  of 
the  convention  as  to  what  provisions  shall  be  inserted  into  a  new 
constitution.  A  constitutional  convention  may  not  properly  enact 
a  law  or  ordinance  abolishing  the  fellow-servant  rule,  but  it  may 
insert  into  the  new  constitution  a  provision  accomplishing  the 
same  purpose.  By  the  insertion  into  new  constitutions  of  mat- 
ters really  not  fundamental  in  character  constitutional  conventions 
have  come  to  exercise  great  powers  of  legislation.2 

The  Supreme  Court  of  Texas  said  with  regard  to  an  ordinance 
of  the  territorial  convention  of  1868: 

It  is  true  that  the  question  of  the  propriety  of  incorporating 
any  specific  provision  into  the  fundamental  law  was  for  the  sole 
determination  of  the  convention.  But  we  are  of  opinion  that 
when  a  convention  is  called  to  frame  a  constitution  which  is  to 
be  submitted  to  a  popular  vote  for  adoption,  it  cannot  pass  or- 
dinances and  give  them  validity  without  submitting  them  to  the 
people  for  ratification  as  a  part  of  the  constitution.  .  .  .  The 
ordinance  of  the  convention  in  question,  which  divided  the  state 

1  Holcombe,  State  Government,  p.  126. 

2  Dodd,  p.  116.    Cf.  Schertz  v.  Bank  (1892),  47  111.  App.  124,  133. 


144  CONSTITUTIONAL  CONVENTIONS 

into  congressional  districts,  and  that  which  provided  for  a  sub- 
mission of  the  proposed  constitution  to  a  vote  of  the  people,  are 
appended  to  the  constitution  as  framed  and  the  whole  are  signed 
by  the  president  and  members  as  one  instrument.1 

But  this  subterfuge  of  including  legislation  in  the  constitu- 
tion has  not  always  gone  unchallenged.  Thus  the  Supreme 
Court  of  Florida  struck  out  of  the  constitution  of  1865  a  purely 
legislative  provision,  repealing  the  statute  of  limitations.2  That 
constitution,  however,  had  been  promulgated  without  being 
submitted  to  the  people  for  ratification.3 

Conventions  which  wish  to  legislate,  however,  do  not  always 
find  it  necessary  to  include  or  refer  to  their  legislation  in  their 
constitution.    Dodd  says: 

Not  only  may  a  convention  legislate  by  inserting  provisions 
into  a  new  constitution,  but  it  may  also  do  so  by  the  submission 
to  the  people  of  separate  clauses  or  ordinances  to  be  voted  upon 
either  as  a  part  of  the  constitution  or  separately  from  it  —  that 
is,  it  may  exercise  ordinance  power  if  the  ordinances  are  sub- 
mitted to  the  people  with  or  at  the  same  time  as  the  proposed 
constitution.4 

Most  of  the  court  decisions  which  have  declared  the  conven- 
tion ordinances  to  be  invalid  have  proceeded,  not  on  the  ground 
that  the  convention  had  no  power  to  frame  these  ordinances, 
but  rather  on  the  ground  that  they  ought  to  have  been  submitted 
to  the  people  for  approval.    See  the  following  quotations: 

The  ordinance  now  under  consideration  was  not  submitted  to  a 
vote,  though  two  others,  which  were  added,  incorporated  into  and 
signed  as  a  part  of  the  constitution,  were  so  submitted.  Since 
the  convention  could  not  finally  legislate,  and  since  a  vote  of  the 
people  was  necessary  to  make  its  action  effective,  we  conclude  that 
the  ordinance  in  question  was  invalid,  and  not  effective  for  any 
purpose.5 

It  is  not  easy  to  define  the  powers  which  a  convention  of  the 
people  may  rightfully  exercise.  It  has  been  doubted  whether 
any  act  of  mere  legislation  in  a  state  having  a  constitution  can  be 

1  Quintan  v.  Houston  Ry.  Co.  (1896),  89  Tex.  356,  376. 

2  Bradford  v.  Shine  (1871),  13  Fla.  393,  411-415. 

3  Thorpe,  Vol.  II,  p.  685,  n.  a. 

4  Dodd,  p.  116. 

6  Quintan  v.  Houston  Ry.  Co.  (1896),  89  Tex.  356,  377. 


EXTRAORDINARY  POWERS  CLAIMED  145 

passed  by  a  convention  called  for  a  particular  and  different  pur- 
pose. The  body  is  not  constituted  with  two  houses,  and  in  other 
respects  lacks  the  organization  necessary  for  ordinary  legisla- 
tion. The  convention  of  1868  was  not  called  for  a  purpose  fairly 
embracing  the  subject  of  this  ordinance,  which  was  never  sub- 
mitted to  the  people.1 

The  ordinance  in  question  pertains  in  no  way  to  an  amendment 
or  revision  of  the  constitution,  and  it  was  beyond  the  power  of  the 
convention  to  pass  this  ordinance,  or  it  could  not  become  binding 
or  of  legal  force  without  having  been  submitted  to  and  ratified  by  the 
people.2 

It  is  contended  that,  if  the  adoption  of  the  ordinance  was 
beyond  the  authority  of  the  convention,  it  is  nevertheless  valid  and 
binding,  because  the  constitution  was  submitted  to  and  was  rati- 
fied by  the  people.  The  authorities  are  almost  uniform  that  the 
ratification  of  an  unauthorized  act  by  the  people  (and  the  people  are 
the  principal  in  this  instance)  renders  the  act  valid  and  binding.3 

The  Supreme  Court  of  Texas,  however,  has  doubted  the  valid- 
ity of  ordinances  submitted  to  the  people  separately  from  the 
constitution,4  but  this  case  would  seem  to  have  gone  on  the 
question  of  separate  submission  of  constitutional  provisions, 
rather  than  on  the  question  of  the  legislative  power  of  the 
convention. 

But  what  is  the  status  of  such  separate  legislation  in  cases 
where  the  submission  of  the  constitution  to  the  people  is  not 
required,  either  by  the  existing  constitution  or  by  a  convention 
act  ratified  and  adopted  by  the  people.  In  such  cases  it  is  quite 
probable  that  the  convention  may  successfully  promulgate  or- 
dinances of  a  purely  legislative  character.  The  Supreme  Court 
of  Texas  has  said: 

The  convention  which  passed  the  ordinance  which  was  held 
valid  in  Grigsby  v.  Peak  was  called  by  virtue  of  the  proclamation 
of  President  Johnson.  This  proclamation  did  not  require  any 
part  of  the  work  of  the  convention  to  be  submitted  to  the  vote  of 

1  Gibbes  v.  Railroad  (1879),  13  S.  C.  228,  242. 

2  Ex  parte  Birmingham  Ry.  (1905),  145  Ala.  514,  516. 

3  Ex  parte  Birmingham  Ry.  (1905),  145  Ala.  514,  528;  and  cf.  same  case, 
p.  530. 

4  Quintan  v.  Houston  Ry.  Co.  (1896),  89  Tex.  356,  376;  quoted  pp.  143-144, 
supra. 


146  CONSTITUTIONAL  CONVENTIONS 

the  people,  and  ki  our  opinion  therefore  had  the  power  to  pass  ordi- 
nances without  submitting  them  for  adoption  to  a  popular  vote.1 

Dodd  says: 

In  states  where  conventions  may  promulgate  their  work  without 
popular  approval,  although  their  invasion  of  the  purely  legislative 
field  may  be  deprecated,  there  seems  to  be  nothing  to  prevent  such 
action  except  the  self-restraint  and  common  sense  of  the  conven- 
tion itself.  The  same  forces  which  practically  compel  conventions 
to  submit  their  work  to  the  people,  in  most  of  the  states  where  they 
are  not  required  by  constitutional  provisions  to  do  this,  will  also 
keep  them  pretty  definitely  within  their  proper  sphere,  even  where 
the  courts  may  decline  to  interfere.2 

But,  as  has  already  been  pointed  out,  most  of  the  ordinances 
of  so-called  legislative  character  turn  out  on  inspection  to  be 
properly  incidental  to  the  work  of  the  convention.  Among  in- 
stances of  incidental  legislation  have  been  the  following. 

The  Missouri  convention  of  1865  passed  an  ordinance  pro- 
viding for  the  method  of  submitting  the  new  constitution  to 
the  voters.  The  Supreme  Court  of  that  State,  in  a  prosecu- 
tion for  violating  the  oath  required  of  each  voter  under  that  or- 
dinance, held  that  the  enactment  of  the  ordinance  was  within 
the  necessary  incidental  powers  of  a  convention,  and  a  fortiori 
since  this  convention  was  not  required  to  submit  its  work  to  the 
people.    The  court  said: 

The  convention  might  (if  it  had  deemed  proper  to  do  so)  have 
declared  the  constitution  framed  by  it  in  full  force  and  effect  with- 
out making  provision  for  its  submission  to  the  voters  of  the  State. 

As  the  representatives  of  the  people,  clothed  with  an  authority 
as  ample  as  that,  certainly  its  power  to  prescribe  the  means  by 
which  it  was  thought  best  to  ascertain  the  sense  of  the  qualified 
voters  of  the  State  upon  that  instrument  cannot  be  seriously 
questioned.3 

Whenever  the  convention  act  or  the  constitution  omit  to  pre- 
scribe the  detailed  manner  of  submission  or  of  the  internal  gov-  | 
ernment  of  the  convention,  the  conventions  themselves  have 

1  Quinlan  v.  Houston  Ry.  Co.  (1896),  89  Tex.  376,  377;  Grigsby  v.  Peak 
(1882),  57  Tex.  142. 

2  Dodd,  p.  117. 

8  State  v.  Neal  (1868),  42  Mo.  119,  123. 


EXTRAORDINARY  POWERS  CLAIMED  147 

always  covered  the  matter  by  ordinances  or  rules,  and  such  or- 
dinances or  rules  have  rarely  been  questioned.  Conventions 
also  frequently  pass  acts  to  put  the  new  constitution  into  effect. 
Most  of  the  ordinances  of  the  South  Carolina  convention  of 
1895,  the  Mississippi  convention  of  1890,  the  Louisiana  conven- 
tion of  1898,  and  the  Missouri  convention  of  1865,  cited  by  Dodd 
as  "ordinances  of  a  purely  legislative  character"  *  turn  out 
upon  examination  to  be  really  incidental  to  the  powers  of  the 
convention. 

Thus  we  see  that  conventions,  unless  expressly  called  for  some  / 
further  purpose,  are  bound  to  the  framing  of  a  constitution  and 
the  passage  of  necessary  rules  and  ordinances  incidental  thereto.   | 
They  have  no  power  to  legislate  or  to  interfere  with  members  of 
the  other  two  branches  of  government. 

The  powers  of  legislation  permitted  to  a  convention  are  appar- 
ently limited  to  preliminary,  temporary,  and  provisional  measures.2 

A  related  question  to  the  legislative  powers  of  a  convention 
is  the  question  of  its  power  to  perform  the  functions  assigned 
to  the  State  legislature.  Whatever  may  be  said  in  theory  in  op- 
position to  this  assumption  of  power,3  the  fact  remains  that  it 
has  been  actually  exercised. 

The  Illinois  convention  of  1862  divided  the  State  into  con- 
gressional districts,  under  United  States  Constitution,  Article 
I,  Section  IV,  which  assigns  that  duty  to  the  State  legislatures.4 
This  has  also  been  uniformly  done  by  conventions  in  territories 
seeking  admission  to  the  Union,  and  has  been  done  by  some 
reconstruction  conventions.5  Such  redistrictings,  including  the 
Illinois  case,  have  uniformly  been  accepted  by  Congress. 

The  same  Illinois  convention  of  1862  ratified  the  pro-slavery 
amendment  to  the  Federal  Constitution,  under  United  States 
Constitution,  Article  V,  which  assigns  that  duty  to  the  State  leg- 
islatures.6 The  validity  of  this  action,  however,  was  never  deter- 
mined, as  not  enough  other  States  ever  ratified  this  amendment. 

Can  conventions  increase  their  own  powers?  This  question  is 
sometimes  stated  in  the  form:  has  a  convention  the  power  to 
amend  the  convention  act  which  calls  it  into  being?    This  is 

1  Dodd,  p.  108.  *  6  R.  C.  L.,  §  18,  pp.  27-28. 

3  Jameson,  pp.  448-452.  4  Jameson,  pp.  446-447. 

5  Jameson,  p.  449.  6  Jameson,  p.  450. 


148  .  CONSTITUTIONAL  CONVENTIONS 

really  the  converse  of  the  question  of  the  powers  of  the  legisla- 
ture and  the  people  to  restrict  the  convention.  Any  violation 
of  valid  restrictions  may  of  course  be  ratified  by  the  acceptance 
of  the  constitution  or  a  ratifying  ordinance  by  the  people. 

Complete  interference  with  the  various  branches  of  the 
government  may  perhaps  be  more  successful  than  partial 
interference.  If  the  old  government  is  completely  overthrown, 
there  will  be  left  no  one  in  authority  who  can  question  the  rights 
of  the  convention.  Allusion  has  been  made  several  times  in 
this  book  to  the  statement  by  the  Supreme  Court  of  the  United 
States  that  a  court  has  no  power  to  hold  invalid  the  constitution 
under  which  it  sits.1 

The  Rhode  Island  Supreme  Court,  to  whom  the  Federal 
Court  was  referring  in  that  quotation,  went  further  and  inti- 
mated that  if  the  question  had  been  before  a  court  established 
by  the  rival  government,  that  court  would  have  had  to  decide 
exactly  the  opposite  from  this  court.2 

And  as  has  already  been  intimated,  the  executive  officers 
having  charge  of  money  matters  under  the  new  government  (or 
under  the  old  government,  if  they  were  in  sympathy  with  the 
new)  could  effectually  put  the  new  government  into  power 
by  means  of  this  control.3 

Thus  it  appears  that  if  a  convention  decides  to  exceed  its 
proper  functions  and  attempt  to  exercise  convention  sover- 
eignty, it  had  better  be  as  sovereign  as  possible.  Extremes 
of  moderation  and  immoderation  are  thus  seen  to  meet,  in 
success. 

1  See  pp.  101  and  102,  supra;  and  158,  infra. 

2  "Trial  of  Dorr,"  p.  38.    Quoted  on  p.  157,  infra. 

3  See  p.  93,  supra. 


Chapter  XII 
JUDICIAL  INTERVENTION 

To  what  extent  can  the  judicial  branch  of  the  government 
interfere  with  the  procedure  of  constitutional  amendment  by 
the  convention  method? 

We  can  best  understand  the  discussion  of  this  question  if  we 
first  consider  the  matter  of  judicial  interference  with  amend- 
ments adopted  under  constitutional  methods.  Such  a  study  will 
show  us  how  ready  the  courts  are  to  seize  on  the  slightest  flaw 
as  a  ground  for  declaring  a  supposed  amendment  to  be  void. 
Taking  up  first  the  case  of  amendments  submitted  by  the 
legislature  to  a  popular  vote,  we  find  the  courts  upsetting 
amendments,  even  after  popular  ratification,  on  the  following 
grounds:  Because  not  enough  legislators  voted  thereon;1 
because  the  amendment  had  been  entered  in  the  House  Journal 
by  title  instead  of  in  full;2  because  the  amendment  was  proposed 
by  a  special  instead  of  regular  session;3  because  of  slight  dis- 
crepancies in  the  journal  entries  of  two  sessions,  although  it 
was  clear  that  both  sessions  acted  on  the  identical  amendment;4 
because  the  proposed  amendment  was  not  advertised  in  the 
newspapers  at  just  the  right  time;5  because  the  amendment 
treated  two  separable  subjects;6   and  for  other  similar  reasons.7 

1  Holmberg  v.  Jones  (1901),  7  Ida.  752,  757-758. 

2  Koehler  v.  Hill  (1883),  60  la.  543;  State  v.  Brookhart  (1901),  113  la.  250; 
People  v.  Strother  (1885),  67  Cal.  624;  Thonvason  v.  Ruggles  (1886),  69  Cal.  465; 
Paving  Co.  v.  Hilton  (1886),  69  Cal.  479;  Paving  Co.  v.  Tompkins  (1887),  72 
Cal.  5;  People  v.  Loomis  (1904),  135  Mich.  556;  Re  Senate  File,  25  Neb.  864, 
883-886;  Durfee  v.  Harper  (1899),  22  Mont.  354;  State  v.  Tufley  (1887), 
19  Nev.  391. 

3  People  v.  Curry  (1900),  130  Cal.  82.  This  amendment,  however,  had  not 
yet  been  acted  on  by  the  people. 

«  Koehler  v.  Hill  (1883),  60  la.  543. 
6  State  v.  Toolcer  (1894),  15  Mont.  8. 

6  State  v.  Powell  (1900),  77  Miss.  543.  The  real  reason  for  this  decision, 
however,  was  that  the  amendment  in  question  affected  the  tenure  of  the  judges 
who  rendered  the  decision.  McBee  v.  Brady  (1909),  15  Ida.  761;  Armstrong  v. 
Berkey  (1909),  23  Ok.  176. 

7  McConaughty  v.  Secy,  of  State  (1909),  106  Minn.  392;  State  v.  Swift  (1880), 


150  CONSTITUTIONAL  CONVENTIONS 

Of  course,  there  are  some  decisions  in  which  the  courts  have 
been  more  liberal,  but  these  are  mostly  in  earlier  cases,  before 
the  control  of  the  courts  over  the  constitution  had  been  fully 
developed,  and  are  in  the  minority.  Dodd  points  out  that  since 
1890  the  courts  have  frequently  exercised  supervision  over  all 
steps  in  the  amending  process,1  and  he  goes  on  to  say, 

It  may  be  said  then  that  the  courts  exercise  supervision  over  all 
steps  of  the  amending  process  which  are  specified  by  the  constitution.2 

The  italics  in  the  last  quotation  are  the  present  author's.  They 
point  out  an  important  distinction.  Following  that  distinction, 
it  is  probable  that  the  courts  would  exercise  the  same  super- 
vision over  a  convention,  so  far  as  that  convention  was  author- 
ized by  the  constitution,3  as  they  would  over  the  legislative 
method  of  amending. 

As  Dodd  says: 

Although,  then,  a  convention,  in  framing  a  complete  constitution 
or  a  revised  instrument,  would  seem,  in  theory,  to  be  bound  by  exist- 
ing constitutional  restrictions  upon  the  exercise  of  its  power,  as 
strictly  as  is  the  legislature  in  proposing  constitutional  amend- 
ments, yet  there  are  difficulties  in  the  way  of  enforcing  this  rule. 
If  a  constitution  has  been  proposed  for  the  approval  of  the  people, 
a  court  would  hardly  enjoin  its  submission,  although  this  might  be 
done;  if  this  were  not  done  the  only  other  opportunity  for  the 
court  to  act  would  be  after  a  constitution  had  been  approved  and 
before  it  had  gone  into  operation,  for  after  it  had  become  effective 
a  court  would  hardly  dare  overturn  the  government  organized  under 
it  when  there  were  no  opposing  bodies  claiming  to  be  the  lawful 
government  —  the  question  as  to  the  validity  of  the  constitution 
would  have  become  a  political  question  with  which  the  court 
should  properly  refuse  to  meddle.  On  the  whole  it  would  seem  that 
because  of  practical  considerations  courts  must  pursue  a  more  liberal 
policy  in  passing  upon  the  acts  of  a  convention,  especially  after  they 
have  been  approved  by  the  people,  than  it  has  [sic]  pursued  in 

69  Ind.  505;  Re  Denny  (1901),  156  Ind.  104;  State  v.  Brooks  (1909),  17  Wyo. 
344;  Hatch  v.  Stoneman  (1885),  66  Cal.  632;  State  v.  Davis  (1888),  20  Nev. 
220;  Livermore  v.  Waite  (1894),  102  Cal.  113;  Collier  v.  Frierson  (1854),  24 
Ala.  100. 

1  Dodd,  p.  212,  n.  157. 

2  Dodd,  p.  215. 

3  The  author  has  been  unable  to  find  any  instances  of  this,  however. 


JUDICIAL   INTERVENTION  151 

interpreting  the  constitutional  restrictions  placed  upon  the  legis- 
lative power  to  propose  amendments.1 

Or,  as  the  Supreme  Court  of  Alabama  has  said: 

We  entertain  no  doubt  that,  to  change  the  Constitution  in  any 
other  mode  than  by  a  Convention,  every  requisition  which  is 
demanded  by  the  instrument  itself  must  be  fulfilled,  and  the 
omission  of  any  one  is  fatal  to  the  amendment.2 

The  real  reason  for  this  is  probably  the  fact,  as  we  have 
already  seen,  that  as  conventions  may  be  held  in  the  absence 
of  constitutional  provisions,  or  in  the  face  of  provisions  pro- 
hibiting them,  or  even  in  a  different  manner  from  provisions 
permitting  them,  the  constitution  has  really  little  to  do  with 
conventions,  and  hence  constitutional  provisions  authorizing 
such  conventions  have  no  higher  standing  than  bits  of  ordinary 
legislation  to  the  same  effect.  This  may  explain  the  reason  why 
courts  are  more  hesitant  to  interfere  with  this  amending  process. 
We  will  therefore  consider  the  judicial  interference  with  the 
convention  method,  as  if  it  were  altogether  an  extraconstitu- 
tional  proceeding. 

Can  the  courts  interfere  with  such  proceedings  while  they  are 
pending?  There  is  a  good  deal  of  authority  that  courts  will  not 
interfere  with  even  the  legislative  method  of  amendment  while 
it  is  pending,  but  will  wait  to  pass  on  the  validity  of  the  finally 
adopted  constitutional  provisions.3  A  fortiori,  courts  ought 
not  to  interfere  with  the  convention  method  while  it  is  pending. 
Yet  courts  have  so  interfered.  The  Pennsylvania  Supreme 
Court  issued  an  injunction  prohibiting  the  convention  of  1872 
from  submitting  their  constitutional  changes  to  the  people 
in  a  way  different  from  that  prescribed  by  the  convention  act. 

The  court  said: 

The  first  remark  to  be  made  is,  that  all  the  departments  of 
government  are  yet  in  full  life  and  vigor,  not  being  displaced  by 
any  authorized  act  of  the  people.  As  a  court  we  are  still  bound 
to  administer  justice  as  heretofore.  If  the  acts  complained  of  in 
these  bills  are  invasions  of  rights  without  authority,  we  must 
exercise  our  lawful  jurisdiction  to  restrain  them.    One  of  our  equity 

i  Dodd,  pp.  102-103. 

*  Collier  v.  Frierson  (1854),  24  Ala.  100,  108. 

8  Dodd,  pp.  230-232. 


152  CONSTITUTIONAL  CONVENTIONS 

powers  is  the  prevention  or  restraint  of  the  commission  or  con- 
tinuance of  acts  contrary  to  law,  and  prejudicial  to  the  interests 
of  the  community  or  the  rights  of  individuals.  ...  In  this  case 
we  are  called  upon  not  to  strike  down,  but  to  protect  a  lawful 
system,  and  to  prevent  intrusion  by  unlawful  authority.  If  this 
ordinance  is  invalid,  as  we  have  seen  it  is  as  to  the  city  elections, 
the  taxes  of  the  citizens  will  be  diverted  to  unlawful  uses,  the 
electors  will  be  endangered  in  the  exercise  of  their  lawful  franchise, 
and  an  officer  necessary  to  the  lawful  execution  of  the  election  law 
ousted  by  unlawful  usurpation  of  his  functions.1 

Yet  this  court  refused  to  interfere  in  matters  of  internal  man- 
agement, even  though  they  were  in  violation  of  the  provisions 
of  the  convention  act,  saying: 

If  they  do  this  wrong,  no  appeal  is  given  to  the  judiciary,  and 
the  error  can  be  corrected  only  by  the  people  themselves,  by  reject- 
ing the  work  of  the  convention.2 

The  Supreme  Court  of  Oklahoma  refused  to  interfere  with  a 
convention  of  that  State,  saying: 

The  courts  will  not  interfere  by  injunction  or  otherwise  with  the 
exercise  of  legislative  or  political  conventions.3 

Dodd  comments  on  this  decision  as  follows: 

This  is  simply  a  statement  that  the  court  would  not  interfere 
with  the  process  of  constitution-making,  but  would  hold  itself  free 
to  declare  an  act  of  the  convention  invalid,  after  it  had  been  ap- 
proved by  the  people,  if  it  were  in  excess  of  the  convention's  power.4 

The  process  of  amendment  is  a  process  of  superior  legislation, 
and  the  courts  ordinarily  decline  to  interfere  with  the  processes  of 
legislation,  although  they  may  always  pass  upon  the  validity  of  the 
completed  product  of  such  process.5 

In  one  instance,  in  New  York,  the  court,  after  taking  juris- 
diction of  a  proceeding  to  interfere  with  the  internal  government 
of  the  convention,  dismissed  the  proceeding  because  of  a  sharp 
rebuke  administered  by  the  convention.6  The  convention  said, 
in  the  course  of  this  rebuke: 

'  *  Wells  v.  Bain  (1872),  75  Pa.  39,  56-57. 
«  Wood's  Appeal  (1874),  75  Pa.  59. 
3  Franz  v.  Autry  (1907),  18  Okla.  561,  604. 
■  Dodd,  p.  95.  6  Dodd,  p.  232. 

6  See  pp.  170-171,  infra. 


JUDICIAL  INTERVENTION  153 

It  is  far  more  important  that  a  Constitutional  Convention  should 
possess  these  safeguards  of  its  independence  than  it  is  for  an  ordinary 
Legislature;  because  the  Convention's  acts  are  of  a  more  momen- 
tous and  lasting  consequence  and  because  it  has  to  pass  upon  the 
power,  emoluments  and  the  very  existence  of  the  judicial  and 
legislative  officers  who  might  otherwise  interfere  with  it.1 

So  much  for  the  interference  of  the  courts  with  pending 
convention  proceedings.  How  about  their  interference  with 
the  constitutional  changes,  when  these  are  finally  adopted 
by  the  people?  Some  of  the  cases,  which  hold  that  the  courts 
cannot  interfere  with  pending  proceedings,  intimate  that  the 
time  for  interference  is  after  the  proceedings  have  been  com- 
pleted.   Thus  the  Supreme  Court  of  Oklahoma  says: 

The  moment  the  constitution  is  ratified  by  the  people,  and 
approved  by  the  President  of  the  United  States,  then  every  section, 
clause,  and  provision  therein  becomes  subject  to  judicial  cognizance.2 

And  compare: 

It  [i.  e.  the  court]  has  the  power,  and  it  is  its  duty,  whenever  the 
question  arises  in  the  usual  course  of  litigation,  wherein  the  sub- 
stantial rights  of  any  actual  litigant  are  involved,  to  decide  whether 
any  statute  has  been  legally  enacted,  or  whether  any  change  in  the 
constitution  has  been  legally  effected,  but  it  will  hardly  be  con- 
tended that  it  can  interpose  in  any  case  to  restrain  the  enact- 
ment of  an  unconstitutional  law.  ...  If  they  (the  courts)  cannot 
prevent  the  legislature  from  enacting  unconstitutional  laws,  they 
cannot  prevent  it  and  the  electors  from  making  ineffectual  efforts 
to  amend  the  constitution.3 

But  as  Dodd  points  out: 

But  after  a  constitution  has  been  submitted  to  and  adopted  by 
the  people,  additional  difficulties  present  themselves  in  the  way  of 
declaring  it  or  even  particular  portions  of  it  invalid.4 

The  Harvard  Law  Review  has  recently  set  forth,  in  an  edi- 
torial note,  the  following  exhaustive  views  on  this  subject: 

Consider  first  the  power  of  the  courts  to  deal  with  a  constitution 

1  Report  of  Judiciary  Committee,  Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I, 
p.  245. 

2  Franz  v.  Autry  (1907),  18  Okla.  561,  605. 

3  Cranmer  v.  Thorson  (1896),  9  S.  D.  149,  154-155. 

4  Dodd,  p.  96. 


154  CONSTITUTIONAL  CONVENTIONS 

which  has  been  enacted  by  the  convention  without  submission  to 
popular  vote,  but  has  been  accepted  as  in  force  by  the  other  branches 
of  the  government.  If  the  court  assumes  to  declare  the  whole  con- 
stitution invalid,  maintaining  that  it  is  organized  under  the  old, 
such  a  proceeding  should  be  entirely  futile.  There  is  no  organized 
government  under  the  old  constitution  and  by  its  hypothesis,  the 
court  has  disclaimed  its  authority  to  bind  any  government  claiming 
to  be  organized  under  the  new.  Where,  as  in  the  principal  case, 
the  court  apparently  admits  the  validity  of  the  new  constitution, 
but  declares  part  of  it  invalid,  its  course  seems  even  less  justifiable. 
In  recognizing  part  of  the  new  constitution  it  must  recognize  its 
complete  validity.  Since  a  court  cannot  attack  the  fundamental 
law,  it  can  declare  the  new  constitution  invalid  only  by  action  under 
the  old.  But  this  can  no  longer  exist,  for  its  existence  is  hopelessly 
inconsistent  with  the  validity  of  the  new.  For  whether  it  be  called 
a  lawful  revision  or  a  peaceful  revolution,  by  an  enactment  of  the 
new  constitution  the  old  government  has  been  displaced  and  a 
new  one  substituted.  The  court  is  further  beset  in  these  cases 
by  the  difficulty  that  this  acquiescence  by  the  legislature  may 
amount  to  a  ratification  by  the  people  through  the  organized  gov- 
ernment as  their  agent.  If  the  court  recognizes  the  power  of  the 
legislature  to  bind  the  convention,  it  is  inconsistent  to  deny  the 
legislature  the  power  to  unloose  that  bond.  If  it  believe  in  con- 
ventional sovereignty  it  will,  of  course,  never  declare  the  con- 
stitution invalid.  If  in  addition  the  constitution  has  been  sub- 
mitted and  adopted  by  popular  vote,  it  would  seem  that  any  court 
which  admits  that  the  ultimate  sovereignty  is  in  the  people  must 
recognize  its  validity. 

But  where  the  convention  has  merely  amended  the  existing  con- 
stitution a  different  question  is  presented.  Here  assuming  the 
validity  of  the  restrictions  imposed  on  the  convention,  a  court 
should  have  no  difficulty  in  enjoining  the  submission  of  an  amend- 
ment which  involves  a  violation  of  those  restrictions.  But  if  the 
amendment  is  submitted  for  popular  approval  and  is  ratified,  it 
seems  that  that  expression  of  popular  will  should  override  any 
irregularity  in  violating  any  restriction  not  imposed  by  the  con- 
stitution itself.  If  the  amendment  is  merely  enacted  without 
submission  to  popular  vote,  then  unless  the  acquiescence  of  the 
legislature  can  be  construed  to  be  an  adoption,  its  validity  may 
certainly  be  attacked.1 

The  Supreme  Court  of  Pennsylvania,  after  interfering  with 
the  pending  procedure  (i.  e.  the  convention  ordinance  establish- 
1  XXIX  "Harv.  Law  Rev.,"  531-532. 


JUDICIAL  INTERVENTION  155 

ing  a  new  election  system  for  the  submission  of  the  constitu- 
tion) in  the  case  of  Wells  v.  Bain,  refused  to  interfere  with  the 
completed  constitution  in  the  case  of  Wood's  Appeal.  The 
court  said: 

The  change  made  by  the  people  in  their  political  institutions, 
by  the  adoption  of  the  proposed  Constitution  .  .  .  forbids  any 
inquiry  into  the  merits  of  the  case.  The  question  is  no  longer 
judicial.1 

Judge  Jameson  took  the  same  view  of  the  matter  and  said  of 
this  case: 

The  constitution  framed  by  the  convention  had  been  sub- 
mitted to  and  adopted  by  the  people,  including  the  change  recom- 
mended to  be  made  in  the  Bill  of  Rights;  and  thus,  however  irreg- 
ular, or  even  revolutionary,  its  inception  had  been,  it  had  become 
the  fundamental  law  of  the  State,  and  the  Supreme  Court  must 
accept  it  as  such.2 

Dodd,  however,  feels  that  the  court  might  have  acted  in  the 
second  case  as  it  did  in  the  first,  and  says: 

Inasmuch  as  the  Pennsylvania  court  regarded  the  statutory 
restriction  as  having  a  binding  force  equal  to  that  of  a  constitu- 
tional restriction,  it  would  seem  that  it  might,  in  a  case  properly 
brought  before  it,  logically  have  declared  invalid  the  amendments 
to  the  bill  of  rights,  in  the  same  manner  as  courts  declare  invalid 
amendments  not  proposed  in  accordance  with  constitutional  forms, 
even  after  their  approval  by  the  people.  The  provisions  tainted 
by  irregularity  were  here  clearly  separable  from  the  remainder 
of  the  constitution.3 

But  he  goes  on  to  say: 

The  courts  would  unquestionably  be  cautious  about  singling 
out  and  declaring  invalid  particular  clauses  in  constitutions  which 
had  been  approved  by  the  people,  but  with  reference  to  which  con- 
stitutional requirements  had  not  been  strictly  observed.  No  cases 
have  squarely  arisen  upon  this  point,  and  cases  would  hardly  arise 
where  certain  clearly  separable  parts  of  constitutions  would  be  so 
tainted  with  irregularity  as  to  warrant  judicial  annulment;  should 
such  cases  arise,  however,  it  is  difficult  to  see  why  the  judicial 

1  Wood's  Appeal  (1874),  75  Pa.  59. 

2  Jameson,  p.  407.  3  Dodd,  p.  97. 


156  CONSTITUTIONAL  CONVENTIONS 

attitude  should  be  any  more  liberal  than  with  respect  to  consti- 
tutional amendments.  The  better  view  is  that  courts  should  not 
inquire  too  technically  into  irregularities  in  the  submission  of  a 
constitution  or  of  an  amendment  which  has  been  ratified  by  the 
people.1 

The  Supreme  Courts  of  Kentucky  and  Virginia  concur  with 
the  Supreme  Court  of  Pennsylvania  in  holding  that  the  adop- 
tion of  a  constitutional  amendment  changes  the  question  from 
a  judicial  one  to  a  political  one.  Both  cases  involved  the 
validity  of  constitutions  which  the  convention  had  promulgated 
without  submitting  to  the  people,  although  required  by  the 
convention  act  to  do  so. 

The  Kentucky  Court  elected  to  treat  the  question  as  one  af- 
fecting the  validity  of  the  constitution  as  a  whole  and  said: 

It  is  a  matter  of  current  history  that  both  the  executive  and 
legislative  branches  of  the  government  have  recognized  its  validity 
as  a  constitution,  and  are  now  daily  doing  so.  Is  this  question, 
therefore,  one  of  a  judicial  character?  Does  its  determination  fall 
within  the  organic  power  of  the  court? 

The  court  further  said  .that  the  people  had  acted  under  the 
constitution, 

the  political  power  of  the  government  has  in  many  ways  recog- 
nized it,  and  under  such  circumstances  it  is  our  duty  to  treat  and 
regard  it  as  a  valid  constitution  and  now  the  organic  law  of  our 
Commonwealth.2 

The  Virginia  Court  said  of  the  constitution  of  1902: 

The  Constitution  having  been  thus  acknowledged  and  ac- 
cepted by  the  officers  administering  the  government  and  by  the 
people  of  the  State,  and  being,  as  a  matter  of  fact,  in  force  through- 
out the  State,  and  there  being  no  government  in  existence  under 
the  constitution  of  1869  opposing  or  denying  its  validity,  we  have 
no  difficulty  in  holding  that  the  Constitution  in  question  .  .  .  is  the 
only  rightful,  valid,  and  existing  Constitution  of  this  State,  and 
that  to  it  all  the  citizens  of  Virginia  owe  their  obedience  and 
loyal  allegiance.3 

1  Dodd,  p.  98. 

2  Miller  v.  Johnson  (1892),  92  Ky.  589. 

3  Taylor  v.  Commonwealth  (1903),  101  Va.  829,  831. 


JUDICIAL  INTERVENTION  157 

But 

The  distinction  between  such  a  case  and  one  involving  merely 
an  amendment,  not  in  any  manner  pertaining  to  the  judicial 
authority,  must  at  once  be  apparent  to  the  legal  mind.  The  au- 
thorities recognize  the  distinction.1 

The  value  of  a  judicial  determination  of  the  validity  of  a  con- 
stitution is  minimized  by  the  principle  which  requires  the  mem- 
bers of  a  court  to  decide  in  favor  of  the  constitution  under 
which  they  themselves  hold  office.  Thus  the  Rhode  Island 
Supreme  Court  said  at  the  trial  of  Dorr: 

If  a  government  had  been  set  up  under  what  is  called  the 
People's  Constitution,  and  they  had  appointed  judges  to  give  effect 
to  their  proceedings,  and  deriving  authority  from  such  a  source, 
such  a  court  might  have  been  addressed  on  a  question  like  this. 
But  we  are  not  that  court.  We  know  and  can  know  but  one  govern- 
ment, one  authority  in  the  State.  We  can  recognize  the  Consti- 
tution under  which  we  hold  our  places,  and  no  other.  All  other 
proceedings  under  any  other  are  to  us  as  nullities.2 

Likewise  the  United  States  Supreme  Court  said,  in  a  case 
growing  out  of  the  Dorr  controversy: 

Where  a  claim  exists  by  two  governments  over  a  country, 
the  courts  of  each  are  bound  to  consider  the  claims  of  their  own 
government  as  right,  being  settled  for  the  time  being  by  the  proper 
political  tribunal.3 

And  this  principle  was  carried  out  by  a  court  acting  under 
the  new  government  in  a  West  Virginia  case: 

The  legality  of  the  election  for  officers  held  on  the  22nd  day  of 
August,  1872,  after  the  ratification  of  the  new  constitution  and 
schedule,  is  not  to  be  called  in  question  by  any  court  created  or 
continued  by  the  provisions  of  that  constitution.  When  it  is 
proposed  that  this  Court  shall  determine  that  the  sovereign  power 
of  this  state  cannot  lawfully  commission  a  judge  of  its  own  crea- 
tion, it  is  invited  to  commit  judicial  suicide.     Courts  sit  to  ex- 

1  Koehler  v.  Hill  (1883),  60  la.  543,  614. 

2  "Trial  of  Dorr,"  p.  38. 

3  Luther  v.  Borden  (1849),  7  How.  1,  57;  citing  Williams  v.  Suff.  Ins.  Co., 
3  Sumner  270. 


158  CONSTITUTIONAL  CONVENTIONS 

pound  the  laws  made  by  their  government,  and  not  to  declare  that 
government  itself  an  usurpation.1 

The  idea  of  "judicial  suicide"  expressed  by  the  West  Virginia 
Court  has  also  been  phrased  as  follows: 

A  court  which  under  the  circumstances  named,  should  enter 
upon  an  inquiry  as  to  the  existence  of  the  constitution  under 
which  it  was  acting,  would  be  like  a  man  trying  to  prove  his  per- 
sonal existence,  and  would  be  obliged  to  assume  the  very  point 
in  dispute,  before  taking  the  first  step  in  the  argument.2 

The  singular  spectacle  of  a  court  sitting  as  a  court  to  declare 
that  we  are  not  a  court.3 

And  if  a  state  court  should  enter  upon  the  inquiry  proposed  in 
this  case,  and  should  come  to  the  conclusion  that  the  government 
under  which  it  acted  had  been  put  aside  and  displaced  by  an  op- 
posing government,  it  would  cease  to  be  a  court,  and  be  incapable 
of  pronouncing  a  judicial  decision  upon  the  question  it  undertook 
to  try.  If  it  decides  at  all  as  a  court,  it  necessarily  affirms  the 
existence  and  authority  of  the  government  under  which  it  is 
exercising  judicial  power.4 

Thus  a  judicial  determination  of  the  validity  or  invalidity 
of  a  new  constitution  merely  means  that  the  judges  who  render 
it  are  very  much  attached  to  their  positions. 

All  of  the  foregoing  discussion  has  related  to  interference 
with  the  amending  process.  The  power  of  the  courts  to  inter- 
fere with  the  convention  when  it  is  exercising  powers  outside 
the  main  purpose  of  its  creation,  presents  an  entirely  different 
question. 

As  Dodd  says: 

It  has  already  been  suggested  that  a  court  would  find  it  difficult 
to  declare  a  complete  constitution  invalid  because  of  irregularities 
in  the  proceedings  or  action  of  a  convention.  What  is  the  attitude  of 
the  courts  in  enforcing  these  implied  restrictions  upon  the  powers 
of  a  convention,  in  preventing  encroachments  by  a  convention, 
upon  powers  reserved  to  other  governmental  organs  of  the  state? 
In  the  first  place  it  should  be  said  that  a  convention's  action  in 

1  Loomis  v.  Jackson  (1873),  6  W.  Va.  613,  708. 

2  Koehler  v.  Hill  (1883),  60  la.  543,  608-609. 

3  Brittle  v.  People  (1873),  2  Neb.  198,  214. 

4  Luther  v.  Borden  (1849),  7  How.  1,  40. 


JUDICIAL  INTERVENTION  159 

these  matters  may  be  controlled  by  the  courts  much  more  easily 
than  irregularities  in  the  framing  of  a  complete  constitution. 
If  a  convention  should  attempt  to  remove  an  officer  of  the  state 
government  and  to  appoint  another  in  his  place,  the  court  may 
properly'  restore  the  removed  officer  without  in  any  way  inter- 
fering with  the  convention's  proper  functions;  if  the  convention 
passes  an  ordinance  of  a  purely  legislative  character,  the  court 
in  a  case  properly  brought  before  it  may  declare  the  ordinance 
invalid  and  decline  to  enforce  it.  Improper  acts  committed  by 
a  convention  in  the  framing  of  a  constitution  may  be  acts  done 
in  the  exercise  of  a  power  within  the  competence  of  the  conven- 
tion, and  are  difficult  to  correct,  because  of  the  close  interrela- 
tion of  the  irregular  acts  with  those  which  may  be  regular  and 
proper.  When  it  encroaches  upon  the  existing  government,  a 
convention  acts  in  excess  of  power  and  its  action  may  be  con- 
trolled without  interference  with  the  functions  which  properly 
belong  to  it.1 

and  see  also  the  following  quotations  from  other  sources: 

The  claim  for  absolute  sovereignty  in  the  convention,  appar- 
ently sustained  in  the  opinion,  is  of  such  magnitude  and  over- 
whelming importance  to  the  people  themselves,  it  cannot  be 
passed  unnoticed.  In  defence  of  their  just  rights,  we  are  bound 
to  show  that  it  is  unsound  and  dangerous.  Their  liberties  would 
be  suspended  by  a  thread  more  slender  than  the  hair  which  held 
the  tyrant's  sword  over  the  head  of  Damocles,  if  they  could  not, 
while  yet  their  existing  government  remained  unchanged,  obtain 
from  the  courts  protection  against  the  usurpation  of  power  by 
their  servants  in  the  convention.  .  .  . 

There  is  no  subject  more  momentous  or  deeply  interesting  to 
the  people  of  this  state  than  an  assumption  of  absolute  power 
by  their  servants.  The  claim  of  a  body  of  mere  deputies  to 
exercise  all  their  sovereignty,  absolutely,  instantly,  and  without 
ratification,  is  so  full  of  peril  to  a  free  people,  living  under  their 
own  instituted  government,  and  a  well  matured  bill  of  rights, 
the  bulwark  and  security  of  their  liberties,  that  they  will  pause 
before  they  allow  the  claim  and  inquire  how  they  delegated  this 
fearful  power  and  how  they  are  thus  absolutely  bound  and  can 
be  controlled  by  persons  appointed  to  a  special  service.  Struck 
by  the  danger,  and  prompted  by  self-interest,  they  will  at  once 
distinguish  between  their  own  rights  and  the  powers  they  commit  to 
others.    These  rights  it  is,  the  judiciary  is  called  in  to  maintain.2 

i  Dodd,  pp.  108-109.  2  Wood's  Appeal  (1874),  75  Pa.  59,  69. 


160  CONSTITUTIONAL  CONVENTIONS 

While  it  [i.  e.  the  convention]  acts  within  the  scope  of  its  dele- 
gated powers,  it  is  not  amenable  for  its  acts,  but  when  it  assumes 
to  legislate,  to  repeal  and  displace  existing  institutions  before  they 
are  displaced  by  the  adoption  of  its  propositions,  it  acts  without 
authority,  and  the  citizens  injured  thereby  are  entitled,  under  the 
declaration  of  rights,  to  an  open  court  and  to  redress  at  our  hands.1 

But  the  question  was  made  whether  the  convention  which 
passed  the  ordinance,  was  not  limited  by  the  purpose  for  which 
it  was  assembled;  and  I  am  of  opinion  that  it  was  so  limited. 
And  this  detracts  in  no  degree  from  the  sovereign  character  of 
its  act  when  within  that  purpose.  We  have  no  authority  to 
judge  of,  revise  or  control  any  act  of  the  people;  but  when  any 
thing  is  presented  to  us  as  the  act  of  the  people,  we  must  of  neces- 
sity judge  and  determine  whether  it  be  indeed  their  act.  The  sole 
difficulty  seems  to  me  to  have  arisen  from  confounding  together 
the  authority  attributed  by  the  constitution  to  the  people,  with 
that  of  the  convention.  Certainly  the  convention  was  not  the 
people  for  any  other  purpose  than  that  for  which  the  people 
elected  and  delegated  them.2 

We  have  already  seen  that  the  convention  is  really  a  fourth 
branch  of  the  government.3  The  same  rules  with  respect  to 
judicial  interference  ought  to  apply  as  would  apply  to  judicial 
interference  with  either  the  legislature  or  the  executive.  So 
long  as  the  convention  is  acting  within  the  scope  of  its  duties  as 
a  framer  of  constitutions,  the  courts  ought  not  to  interfere,  no 
matter  how  much  the  convention  appears  to  exceed  its  powers. 
But  the  moment  a  convention  strays  into  legislative,  executive, 
or  judicial  fields,  it  is  the  duty  of  the  court,  acting  under  the 
existing  constitution,  to  promptly  put  a  stop  to  such  usurpation. 

So  much  for  the  State  courts.  What  should  be  the  attitude 
of  the  Federal  courts  toward  a  State  constitutional  convention? 
It  would  seem  that  the  Federal  courts  ought  not  to  interfere, 
except  in  the  case  of  a  violation  of  the  Federal  Constitution. 
There  are  no  Federal  decisions  on  amendments  adopted  by  the 
convention  method,  but  the  language  of  the  decisions  relating 
to  legislative  amendments  is  broad  enough  to  cover  the  case  of 
conventions.  There  are  two  decisions  on  this  point  in  inferior 
Federal  courts.    The  case  of  Smith  v.  Good  was  an  action  upon 

1  Wells  v.  Bain  (1872),  75  Pa.  39,  57. 

2  McCready  v.  Hunt  (1834),  2  Hill  Law  (S.  C.)  1,  270. 
8  See  pp.  89-91,  supra. 


JUDICIAL  INTERVENTION  161 

a  promissory  note  given  for  the  purchase  of  liquor  in  violation 
of  the  Rhode  Island  prohibition  amendment  of  1866.  The 
plaintiff  contended  that  the  amendment  had  not  been  legally 
adopted.    But  the  court  said: 

When  the  political  power  of  the  state  declares  that  an  amend- 
ment to  the  constitution  has  been  duly  adopted,  and  the  amend- 
ment is  acquiesced  in  by  the  people,  and  has  never  been  adjudged 
illegal  by  the  state  court,  the  jurisdiction  of  a  federal  court  to 
question  the  validity  of  such  a  change  in  the  fundamental  law 
of  a  state  should  clearly  appear.  .  .  .  The  very  framework  of  the 
federal  government  presupposes  that  the  states  are  to  be  the  judges 
of  their  own  laws;  and  it  is  not  for  the  federal  courts  to  interpose, 
unless  some  provision  of  the  federal  constitution  has  been  violated. 
It  is  not  pretended  in  this  case  that  any  federal  question  is  raised.1 

An  opposite  position  was  taken  in  the  later  case  of  Knight 
v.  Shelton.  This  was  a  suit  for  damages  brought  against  elec- 
tion officials  because  they  refused  to  receive  the  plaintiff's  vote 
for  member  of  Congress.  The  defendant  relied  on  the  failure  of 
the  plaintiff  to  pay  a  poll  tax  as  required  by  an  Arkansas  amend- 
ment in  1892.  The  court  held  that  this  amendment  had  not 
been  legally  adopted.2    Dodd  says: 

Knight  v.  Shelton  and  Smith  v.  Good  are,  of  course,  easily  dis- 
tinguishable on  the  ground  that  in  the  first  case  no  federal  ques- 
tion was  involved,  while  in  Knight  v.  Shelton  a  federal  question 
was  raised  as  to  the  right  to  vote  for  members  of  Congress.  But 
whether  the  plaintiff  had  been  improperly  deprived  of  such  right 
depended  upon  an  amendment  which  had  been  acted  upon  by  the 
state  as  valid  for  twelve  years,  and  which  had  not  been  passed 
upon  by  the  state  court.3 

In  Knight  v.  Shelton  the  question  was  not  raised  as  to  the  im- 
propriety and  possible  inconvenience  of  a  federal  court's  passing 
upon  the  validity  of  a  state  constitutional  amendment  as  tested 
by  the  requirements  of  the  state  constitution.  It  happens  that 
the  Arkansas  court  has  in  a  later  case  taken  a  view  similar  to  that 
taken  by  the  federal  court,  but  suppose  it  had  taken  a  contrary 
view,  and  should  insist  upon  treating  as  valid  an  amendment  which 
the  federal  court  had  declared  invalid.    We  should  then  have  the 

1  Smith  v.  Good  (1888),  34  Fed.  204, 205-206. 

2  Knight  v.  Shelton  (1905),  134  Fed.  423,  441. 

3  Dodd,  pp.  226-227,  n.  190. 


162  CONSTITUTIONAL  CONVENTIONS 

absurd  situation  of  an  amendment  valid  in  the  state  courts  and 
at  the  same  time  invalid  in  the  federal  courts,  unless  the  federal 
courts  should  follow  the  state  decision  after  it  is  rendered.1 

An  attempt  has  recently  been  made  in  the  Federal  courts  to 
set  aside  a  State  constitutional  amendment,  on  the  ground  that 
it  was  contrary  to  the  principles  of  republican  government 
guaranteed  by  the  Federal  Constitution  to  the  States.  But 
the  court  refused  to  pass  on  this  point,  saying  that  it  was  a  po- 
litical question.2  In  view  of  this  decision,  it  is  unlikely  that  the 
Federal  courts  will  ever  again  be  called  on  to  interfere  with 
amendments  to  State  constitutions,  unless  a  Federal  question  is 
involved. 

On  the  whole,  the  question  of  judicial  interference  by  either  the 
State  or  the  Federal  judiciary  with  the  exercise  by  the  convention 
of  its  fourth-branch  power  is  seen  to  be  a  political  question,  and 
hence  outside  the  jurisdiction  of  the  court.  See  the  following 
quotations  on  this  point: 

The  change  made  by  the  people  in  their  political  institutions, 
by  the  adoption  of  the  proposed  Constitution  since  this  decree, 
forbids  an  inquiry  into  the  merits  of  this  case.  The  question  is  no 
longer  judicial.3 

In  forming  the  constitutions  of  the  different  States,  after  the 
Declaration  of  Independence,  and  in  the  various  changes  and 
alterations  which  have  since  been  made,  the  political  department 
has  always  determined  whether  the  proposed  constitution  or 
amendment  was  ratified  or  not  by  the  people  of  the  State,  and  the 
judicial  power  has  followed  its  decision.4 

The  question,  whether  the  new  matter  contained  in  the  Con- 
stitution adopted  by  the  convention  of  1913  is  satisfactory  to  the 
people  of  this  state  and  should  be  retained  in  force  and  effect, 
is,  in  my  humble  opinion,  a  political  question,  and  not  a  legal 
question.6 

A  closely  related  question  is  whether  the  validity  of  adoption 
is  a  political  or  judicial  question;  a  difficulty  which  can  only  be 
pointed  out  without  discussion  here.     The  difficulty  of  treating 

1  Dodd,  p.  227. 

2  Pac.  States  Tel.  Co.  v.  Oregon  (1912),  223  U.  S.  118. 
8  Wood's  Appeal  (1874),  75  Pa.  59,  68-69. 

4  Luther  v.  Borden  (1849),  7  How.  1,  39. 

«  Foley  v.  Dem.  Com.  (1915),  70  So.  104, 105. 


JUDICIAL  INTERVENTION  163 

it  as  a  judicial  question  is  evidenced  by  a  peculiar  doctrine  of  our 
law.  Courts  which  declare  their  power  to  overthrow  an  invalid 
amendment,  will  refuse  to  do  so  if  such  an  amendment  has  been 
in  force  unquestioned  for  a  considerable  time.  To  reconcile  these 
two  ideas  seems  impossible;  but  the  doctrine  may  indicate  that 
this  should  more  properly  be  treated  as  a  political  question,  and 
that  the  courts  should  have  no  power  to  overthrow  any  amendment 
which  the  other  branches  of  the  government  have  recognized 
as  valid.1 

Courts  and  Juries,  gentlemen,  do  not  count  votes  to  determine 
whether  a  constitution  has  been  adopted,  ...  It  belongs  to  the 
Legislature  to  exercise  this  high  duty  ...  we  cannot  revise 
and  reverse  their  acts,  in  this  particular,  without  usurping  their 
power.  ...  if  we  did  so,  we  should  cease  to  be  a  mere  judicial, 
and  become  a  political  tribunal,  with  the  whole  sovereignty  in 
our  hands.  .  .  .  Sovereignty  is  above  Courts  or  Juries,  and  the 
creature  cannot  sit  in  judgment  on  its  creator.2 

If  the  courts  cannot  interfere  with  the  fourth-branch  func- 
tions of  a  convention,  can  they  assist  the  convention?  By 
analogy  from  the  attitude  of  the  courts  toward  the  functions 
of  the  executive  and  legislative  branches,  it  would  seem  that  the 
courts  ought  to  render  this  assistance. 

An  example  of  this  is  furnished  by  a  recent  Michigan  case. 
The  Secretary  of  State  refused  to  submit  the  constitution  pre- 
pared by  the  convention  of  1908  on  the  ballots  of  the  November 
election,  contending  that  action  ought  to  be  had  in  April.  The 
president  of  the  convention  applied  to  the  Supreme  Court  for 
a  mandamus  to  compel  the  Secretary  of  State  to  obey  the  con- 
vention's orders.    The  Supreme  Court  granted  this  mandamus.3 

In  North  Dakota,  the  legislature,  without  constitutional 
authorization,  passed  a  joint  resolution,  submitting  to  the  elec- 
torate the  question  of  holding  a  convention,  and  secured  a 
mandamus  forcing  the  Secretary  of  State  to  place  the  question 
on  the  ballots.4 

Thus  the  courts  will  assist,  if  necessary,  in  putting  through  the 
convention  procedure. 

Another  way  in  which  the  courts  can  assist  the  convention 

1  XXIX  "Harv.  Law  Rev.,"  532-535. 

2  "Trial  of  Dorr,"  p.  85. 

8  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337. 
*  State  v.  Dahl  (1896),  6  N.  D.  81. 


164  CONSTITUTIONAL  CONVENTIONS 

method  of  amendment  would  be  to  render  judicial  advice  if  re- 
quested. Judicial  advice  has  been  rendered  by  the  Supreme 
Courts  in  New  York,  Massachusetts,  Rhode  Island,  and  New 
Hampshire  to  the  legislatures  of  those  States  on  matters  per- 
taining to  the  constitutional  convention.1 

Whether  the  court  would  render  advice  at  the  request  of  the 
convention  itself  would  depend  upon  the  general  attitude  of  the 
court  toward  its  advisory  functions.  Thus  the  Supreme  Court 
of  New  York,  which  rendered  its  opinion  to  the  legislature 
without  any  constitutional  duty  to  do  so,  would  undoubtedly 
take  the  same  attitude  if  requested  by  the  convention.  The 
Supreme  Court  of  Massachusetts,  on  the  other  hand,  always 
strictly  interprets  the  constitutional  provision  for  rendering  ad- 
vice to  the  Governor  and  legislature  and  refuses  to  do  so  unless 
absolutely  bound.  This  court,  therefore,  would  probably  refuse 
to  advise  the  convention. 

On  the  whole,  it  may  be  said  that  the  courts  have  no  power  to 
interfere  with  convention  proceedings  relative  to  the  framing 
of  the  constitution  and  will  probably  treat  the  finally  adopted 
changes  as  a  political  question,  although  the  courts  will  pre- 
vent the  convention  from  usurping  the  powers  of  other  depart- 
ments. The  courts  will  assist  the  convention  to  perform  its 
legitimate  functions  and  will  prevent  the  encroaclment  of  any 
other  branches  of  government  upon  it.  The  cox/ts  will  advise 
the  other  branches  of  the  government  relative  to  the  convention 
and  will  advise  the  convention  in  States  where  the\£ourts  do  not 
interpret  their  advisory  duties  too  strictly. 

1  Journal,  69th  N.  Y.  Assembly,  p.  918;  Opinion  of  Justices  (1833),  6  Cush. 
573;  1917  Mass.  Senate  Doc.,  512;  Opinion  of  Justices  (1883),  14  R.  I.  649; 
Opinion  of  Justices,  76  N.  H.  586  and  612. 


Chapter  XIII 

DOES  THE  CONSTITUTION  APPLY? 

An  interesting  and  important  question  is  the  extent  to  which 
the  existing  constitution  applies  to  a  convention  called  to  revise 
it.    Dodd  says: 

It  is  clear  that  existing  constitutional  provisions  are  binding 
upon  a  convention.  A  convention  does  not  in  any  way  supersede 
the  existing  constitutional  organization  and  is  bound  by  all  restric- 
tions either  expressly  or  impliedly  placed  upon  its  actions  by  the 
constitution  in  force  at  the  time.  A  new  constitution  does  not 
become  effective  until  promulgated  by  the  convention,  if  this  is 
permitted  by  the  existing  constitution,  or  until  ratified  by  the 
people,  if  such  action  is  required.  In  replacing  the  existing  consti- 
tutional organization  a  convention  properly  acts  only  by  the  in- 
strument of  government  which  it  frames  or  adopts.1 

But  we  must  remember  that  Dodd  is  writing  in  a  State2  where 
the  only  conventions  are  those  which  the  constitution  of  that 
State  purports  to  authorize,  which  probably  influenced  his 
point  of  view.  This  chapter  is  designed  to  meet  his  argument 
and  also  that  of  the  following  quotations,  which  appear  to  hold 
that  the  existing  constitution  applies  to  extraconstitutional 
conventions: 

Some  are  apt  to  forget  that  the  people  are  already  under  a  con- 
stitution with  an  existing  frame  of  government  instituted  by  them- 
selves, which  stand  as  barriers  to  the  exercise  of  the  original  powers 
of  the  people,  unless  in  an  authorized  form.3 

In  the  words  of  the  Father  of  his  Country,  we  declare,  "  that  the 
basis  of  our  political  systems  is  the  right  of  the  people  to  make  and 
alter  their  constitutions  of  government;  but  that  the  constitution 
which  at  any  time  exists,  till  changed  by  an  explicit  and  authentic 
act  of  the  whole  people,  is  sacredly  obligatory  upon  all."  4 

1  Dodd,  pp.  92-93.  2  Illinois. 

3  Wells  v.  Bain  (1872),  75  Pa.  39,  53.  4  It.  I.  Bill  of  Rts.,  §  1. 


166  CONSTITUTIONAL  CONVENTIONS 

But,  when  analyzed,  these  quotations  are  seen  merely  to  hold 
that  the  existing  constitution  remains  in  force  until  superseded 
by  the  new. 

It  may  well  be  that  the  constitution  applies  to  the  proceedings 
of  a  convention  which  is  called  under  express  provisions  of  the 
constitution  authorizing  such  a  convention;  and  it  would  seem 
in  the  main  to  be  true  that,  at  least  when  the  people  adopt  the 
provisions  of  a  constitution  by  voting  under  it  to  hold  a  conven- 
tion, those  constitutional  provisions  become  absolutely  binding 
upon  the  convention. 

That  the  binding  force  of  constitutional  provisions  on  con- 
ventions held  by  authority  of  the  constitution  is  due  not  to  the 
constitution  itself,  but  to  the  popular  vote  thereunder,  is  borne 
out  by  the  case  of  the  Delaware  convention  of  1852.  In  this 
case  the  popular  vote  on  the  question  of  holding  the  convention 
was  less  than  that  required  by  the  constitution.  Nevertheless, 
the  convention  was  called  and  held. 

Similarly  in  Indiana,  in  1850,  a  convention  was  held  under 
the  provisions  of  the  constitution  at  a  year  different  from  that 
prescribed  by  that  document.1 

Compare  also  the  discussion  of  the  force  of  general  constitu- 
tional provisions  on  the  qualifications  of  voters,  which  subject 
is  discussed  in  the  chapter  on  submission  of  amendments.2 

Regardless  of  whether  the  constitutional  provisions  are 
binding  in  the  case  of  a  convention  held  ostensibly  under  the 
constitution,  they  are  not  binding  on  conventions  which  are 
clearly  &rira-constitutional.  We  have  already  seen  that  the 
constitution  has  no  power  to  prevent  the  holding  of  such  con- 
ventions, either  by  implied  or  even  by  express  prohibition.3 

If  the  constitution  cannot  prevent  the  holding  of  such  a  con- 
vention, is  it  reasonable  to  suppose  that  the  constitution  can 
limit  such  a  convention?  The  power  to  limit  is  the  power  to 
destroy.  If  the  convention  can  defy  the  constitution  in  the 
matter  of  its  complete  existence,  it  can  certainly  defy  the  con- 
stitution in  the  matter  of  attempted  limitations. 

We  shall  see  in  another  chapter  that  members  of  such  con- 
ventions, although  they  hold  office  under  the  authority  of  the 
State,  do  not  hold  office  under  authority  of  the  State  constitvr 

1  See  these  and  other  similar  instances,  pp.  50-52,  supra. 

2  See  pp.  205-212,  infra.  8  See  pp.  39-43,  4&-49,  supra. 


DOES  THE  CONSTITUTION  APPLY?  167 

tion.1   Similarly  we  shall  see  that  when  a  convention  has  general 
powers  to  submit  the  fruit  of  its  labors  to  the  people  for  ratifi- 
cation, it  may  choose  for  that  purpose  whatever  electorate  it 
considers  will  best  represent  the  people.2 
And  compare: 

Under  the  Constitution  of  1879,  the  power  of  the  Legislature  to 
submit  proposals  to  the  people  for  the  holding  of  a  convention  was 
not  subject  to  the  restrictions  applicable  to  constitutional  amend- 
ments.3 

Thus  the  State  constitution  may  apply  to  some  extent  to 
conventions  held  under  its  express  authority,  but  clearly  has 
absolutely  no  application  to  extraconstitutional  conventions. 
Dodd  intimates  that  the  subject  matter  of  new  amendments 
may  be  limited  by  the  already  existing  constitution,  but  he 
states  that  in  the  present  State  constitutions  there  are  practi- 
cally no  restrictions  upon  the  character  of  proposed  amend- 
ments. Such  restrictions  were  formerly  held  binding  on  the 
legislative  amending  process.4    But  he  suggests: 

It  may  be  that  the  constitutional  difficulty  might  in  certain  cases 
have  been  evaded  by  first  abrogating  the  restriction  by  an  amend- 
ment, and  then  adopting  the  desired  change.  But,  as  has  been 
suggested,  the  state  constitutions  now  in  force  contain  practically 
no  such  restrictions,  and  amendments  are  therefore  subject  to 
judicial  control,  as  tested  by  the  state  constitutions,  with  respect 
to  their  method  of  enactment  only  and  not  with  respect  to  their 
content  and  substance.5 

Thus  the  question  now  has  merely  an  academic  interest. 
Nevertheless  it  would  seem  that  the  people  in  their  sovereign 
capacity,  as  represented  by  the  convention,  might  destroy  any 
part  of  a  constitution  which  they  have  the  power  to  destroy  in 
full.     It  seems  absurd  to  think  that  the  people  could  preclude 

1  See  pp.  185-187,  infra. 

2  See  pp.  205-212,  infra.  The  recent  opinion  of  the  Supreme  Court  of 
Massachusetts  (1917,  Senate  Doc,  512)  may  appear,  at  first  glance,  to  rebut 
this  proposition.  But  it  is  to  be  noted  that  the  court  expressly  refused  to  pass 
upon  the  question  of  whether  or  not  the  convention  is  to  be  held  under  the 
constitution.     See  a  discussion  of  this  opinion,  pp.  208-210,  infra. 

3  State  v.  Am.  Sugar  Co.  (1915),  137  La.  407,  414;  State  v.  Fame  (1899),  51 
La.  Ann.  434,  436. 

4  Dodd,  p.  236,  and  cases  cited. 
6  Dodd,  p.  236. 


168  CONSTITUTIONAL  CONVENTIONS 

themselves  as  to  subject-matter  of  amendments,  any  more  than 
one  generation  could  preclude  another  as  to  methods  of  amend- 
ment. Thus  the  legislature,  people,  and  Supreme  Court  of 
Maine  connived  to  strike  out  of  the  original  Maine  constitution 
some  provisions  which  were  expressly  declared  to  be  irrepealable 
without  the  consent  of  the  legislature  of  Massachusetts.1 

Thus  we  see  that,  in  the  case  of  authorized  conventions,  the 
provisions  of  the  existing  constitution  probably  apply,  so  far  as 
applicable.  This  is  certainly  true  to  the  extent  that  the  people 
choose  to  avail  themselves  of  the  constitutional  provisions. 

But  in  the  case  of  an  extraconstitutional  convention,  the 
constitution  has  no  more  power  to  restrict  the  convention  pro- 
cedure than  it  has  to  prevent  the  convention's  existence. 

Does  the  Federal  Constitution  apply?  The  following  quota- 
tion from  Ruling  Case  Law  will  serve  to  lead  us  from  the  inap- 
plicability of  State  constitutions  to  the  applicability  of  the 
Federal  Constitution. 

The  character  and  extent  of  a  constitution  that  may  be  framed 
by  that  body  is  generally  considered  as  being  freed  from  any  limi- 
tations other  than  those  contained  in  the  constitution  of  the  United 
States.  If  on  its  submission  to  the  people  it  is  adopted,  it  becomes 
the  measure  of  authority  for  all  the  departments  of  government  — 
the  organic  law  of  the  state,  to  which  every  citizen  must  yield  an 
acquiescent  obedience.2 

Holcombe  goes  even  further  and  contends  that  the  union  of 
the  States  in  1787  forever  destroyed  the  fundamental  right  of 
the  people  of  each  State  to  change  their  government  at  will. 

He  says: 

By  the  Federal  Constitution  of  1787,  the  right  of  revolution  was 
definitely  taken  away  from  the  people  of  the  separate  states  and 
reserved  exclusively  to  the  people  of  the  United  States  as  a  whole. 
Under  the  more  perfect  union  the  whole  power  of  the  United  States 
stands  ready  to  protect  the  established  government  of  any  state 
against  domestic  violence.  There  can  be  no  state  revolution, 
therefore,  which  is  not  at  the  same  time  a  national  revolution.3 

The  following  are  some  more  moderate  expressions  of  opinion 
on  the  subject: 

1  Thorpe,  Vol.  VII,  p.  4178,  Art.  X,  §  5;  p.  4186,  §  7. 

2  6  R.  C.  L.,  §  17,  p.  27. 

3  Holcombe,  State  Government,  p.  33. 


DOES  THE  CONSTITUTION  APPLY?  169 

The  federal  constitution  is,  of  course,  superior  to  a  state  consti- 
tution, and  any  amendment  conflicting  with  the  federal  instrument 
is  invalid.1 

As  an  organ  of  the  state  and  as  a  legislative  body  a  convention 
is,  of  course,  subject  to  the  provisions  of  the  federal  constitution 
as  to  contracts,  ex  post  facto  laws,  and  to  all  other  restrictions  im- 
posed upon  the  states  by  that  instrument.2 

It  has,  however,  been  recently  held  that  the  provisions  of  the 
Federal  Constitution  guaranteeing  a  republican  form  of  gov- 
ernment to  each  State,  do  not  apply  to  restrict  the  subject 
matter  of  State  constitutions.3  These  provisions  were  inserted 
in  the  Federal  Constitution  to  protect,  not  to  hamper  the 
States. 

Of  course  the  Federal  Constitution  contains  no  provisions 
which  would  interfere  with  the  proceedings  of  the  convention 
method  except  the  guarantee  in  the  XVth  article  of  amendments, 
which  provides  that 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  de- 
nied or  abridged  by  the  United  States,  or  by  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

Provisions  in  the  Federal  Constitution  requiring  certain  things 
to  be  done  by  a  State  legislature  might  give  the  Federal  gov- 
ernment the  right  to  disregard  such  acts  if  done  by  a  convention 
under  the  assumption  of  legislative  powers.4 

Thus  the  Federal  Constitution  applies  to  the  proceedings  only 
with  respect  to  the  right  to  vote,  and  applies  to  the  results  only 
so  far  as  they  violate  provisions  of  the  Constitution,  excepting 
however  the  provision  guaranteeing  to  the  States  a  republican 
form  of  government. 

| »  Dodd,  p.  235. 

2  Dodd,  p.  93,  and  cases  cited. 

3  Pac.  States  Tel.  Co.  v.  Oregon  (1912),  223  U.  S.  118. 
*  See  p.  147,  supra. 


Chapter  XIV 

INTERNAL  PROCEDURE 

Whatever  control  the  other  departments  of  the  government 
have  over  a  convention,  it  is  obvious  that  the  internal  control 
of  the  convention  by  itself  presents  an  entirely  different  ques- 
tion.   As  Dodd  says: 

Even  if  we  should  assume  that  the  legislature  may  limit  a  con- 
vention as  to  the  submission  of  a  constitution,  or  as  to  methods  of 
submission,  it  would  yet  seem  clear  that  the  legislature  cannot  de- 
prive a  convention  of  powers  necessary  for  its  conduct  as  a  delib- 
erative assembly.  The  convention  would  seem  in  any  case,  in  the 
absence  of  constitutional  requirements  in  the  matter,  to  have 
power  to  establish  its  own  rules  of  order  and  of  procedure,  elect 
its  officers,  pass  upon  the  qualifications  and  election  of  its  members, 
and  to  issue  orders  for  elections  to  fill  vacancies  in  its  membership.1 

And  compare: 

It  is  a  deliberative  body,  having  all  the  necessary  authority  to 
make  rules  for  its  own  procedure,  and  to  decide  upon  all  questions 
falling  within  the  scope  of  its  authority.2 

We  have  already  seen  'in  the  discussion  of  the  legislative 
powers  of  a  convention  that  it  has  undoubted  power  to  pass  such 
rules  and  ordinances  as  are  necessary  for  its  own  proceedings.3 

Primarily,  a  convention  is  the  sole  judge  of  the  elections  of 
its  own  members.  This  is  illustrated  by  the  case  of  the  New 
York  convention  of  1894.  The  convention  was  proceeding  to 
determine  a  contested  election  case,  whereupon  one  of  the 
contestants  applied  to  the  Supreme  Court  for  an  injunction 
to  prohibit  the  convention  from  passing  upon  the  question, 
claiming  that  whether  or  not  he  was  entitled  to  the  seat  was 


"  Dodd,  p.  88. 

2  Wells  v.  Bain  (1872),  75  Pa.  39,  55. 

3  See  pp.  146-147,  supra. 


INTERNAL  PROCEDURE  171 

a  question  for  the  determination  of  the  courts.  The  court 
assumed  jurisdiction  and  was  about  to  proceed  with  the  case, 
but  the  Judiciary  Committee  of  the  convention  adopted  a  strong 
report  denying  the  power  of  the  court,  and  the  court  promptly 
accepted  the  rebuke  and  discontinued  the  case.1  The  following 
quotation  from  the  convention  report,  to  which  the  court 
yielded,  is  instructive: 

It  is  of  the  greatest  importance  that  a  body  chosen  by  the  people 
of  this  state  to  revise  the  organic  law  of  the  state,  should  be  as 
free  from  interference  from  the  several  departments  of  govern- 
ment, as  the  legislative,  executive  and  judiciary  are,  from  inter- 
ference by  each  other.2 

This  report  also  contains  a  valuable  collection  of  precedents 
of  contested  elections  in  ninety-four  American  conventions, 
and  concludes  therefrom  that: 

Without  any  exception,  the  practice  has  been  uniform  from 
first  to  last  in  favor  of  the  Convention  exercising  the  prerogative 
of  deciding  who  were  elected  members.3 

The  power  to  be  the  judge  of  their  own  elections  may  carry 
with  it  by  implication  the  power  to  fill  vacancies.  This,  how- 
ever, is  denied  by  Jameson  at  considerable  length.  Jameson 
denies  that  a  convention  can  itself  fill  vacancies  in  its  own 
ranks  because,  as  he  says,  that  would  render  the  convention 
pro  tanto  self-appointing;  and  for  the  same  reason  he  denies 
its  right  to  authorize  the  colleagues  of  resigning  or  deceased 
members  to  name  their  successors.4  No  cases  have  arisen  in 
which  a  convention  has  tried  to  do  either  of  these  things  without 
being  expressly  authorized  by  the  convention  act. 

A  different  question  is  presented,  however,  when  we  consider 
whether  a  convention  can  issue  precepts  to  the  constituencies 
of  retiring  or  deceased  delegates,  directing  new  elections  to  fill 
the  vacancies.  The  only  case  in  which  any  dispute  has  arisen 
over  this  power  was  the  Berlin  controversy  in  the  Massachusetts 

1  Lincoln,  Const.  Hist,  of  N.  Y.,  Vol.  Ill,  p.  666.  Elihu  Root  was  chairman 
of  this  committee.  Lincoln  himself  drew  the  report.  It  was  unanimously  ac- 
cepted by  the  convention.    Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  270. 

2  Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  250. 

8  Rev.  Record,  N.  Y.  Conv.  1894,  Vol.  I,  p.  267-270. 
'  Jameson,  p.  331. 


172  CONSTITUTIONAL  CONVENTIONS 

convention  of  1853,  which  is  discussed  at  length  by  Jameson.1 
It  must  be  remembered,  however,  that  this  contest  was  in 
reality  the  first  struggle  for  supremacy  between  two  opposing 
parties  in  that  convention,  and  was  based  more  on  the  question 
of  the  power  of  the  legislature  to  amend  the  convention  act 
by  abolishing  the  secret  ballot,  than  on  the  question  of  the 
power  of  the  convention  to  authorize  the  filling  of  vacancies. 
But,  whatever  we  may  think  of  the  arguments  pro  and  con  in 
that  convention,  we  cannot  evade  the  fact  that  the  convention 
by  an  overwhelming  majority  decided  in  favor  of  its  power  to 
authorize  the  filling  of  vacancies. 

This  precedent,  coupled  with  the  well-known  power  of  all 
parliamentary  bodies  to  provide  for  the  filling  of  vacancies  in 
as  near  as  possible  the  same  manner  as  the  original  seats  were 
filled,2  leads  inevitably  to  the  conclusion  that  conventions  do 
have  the  power  which  was  successfully  asserted  by  the  Massa- 
chusetts convention  of  1853. 

A  book  published  by  the  recent  Constitutional  Convention 
Commission  in  New  York  says: 

Another  question  of  importance  is  that  as  to  the  filling  of  va- 
cancies which  may  occur  after  delegates  have  once  been  elected 
to  a  constitutional  convention.  In  conventions  there  have  been 
a  number  of  elaborate  and  somewhat  theoretical  arguments  re- 
garding the  power  of  a  convention  to  provide  for  the  filling  of 
vacancies  therein,  in  the  absence  of  constitutional  or  statutory 
provision  for  this  purpose.  The  more  sensible  view  under  such 
circumstances  is  that  the  convention  may  direct  an  election  to 
fill  a  vacancy.3 

The  status  and  oaths  of  delegates  are  discussed  in  the  next 
chapter. 

Obviously  the  first  duty  of  a  convention  is  to  obtain  quarters. 
Jameson  says: 

The  general  rule  is  undoubtedly  this :  —  as  Conventions  are 
commonly  numerous  assemblies,  containing,  in  most  cases,  the 
same  number  of  members  as  the  State  legislatures,  they  are  pos- 

1  Jameson,  pp.  333-342. 

2  Opinion  of  Justices  (1826),  3  Pick.  517,  520. 

<  *  N.  Y.  Rev.  of  Consts.,  p.  58.  The  full  title  is  "Revision  of  the  State  Con- 
stitution," published  by  the  New  York  Constitutional  Convention  Commission 
in  1915. 


INTERNAL  PROCEDURE  173 

sessed  of  such  powers  as  are  requisite  to  secure  their  own  comfort, 
to  protect  and  preserve  their  dignity  and  efficiency,  and  to  insure 
orderly  procedure  in  their  business.  For  the  attainment  of  these 
ends,  they  are  not  without  the  authority  possessed  by  agents  in 
general,  and,  in  my  judgment,  they  are  possessed  of  no  other  or 
greater.  Thus,  they  must  have  a  suitable  hall,  adequately 
warmed  and  lighted;  and,  though  the  Acts  calling  them  were 
silent  on  the  point,  they  would  unquestionably  have  power  to 
engage  one,  and  to  pledge  the  faith  of  the  State  for  the  rental 
thereof.1 

The  next  requirement  would  be  to  obtain  suitable  officers. 

There  can  be  no  doubt,  a  Convention  would  be  authorized  to 
appoint  such  officers  and  servants  as  the  custom  of  public  assem- 
blies, in  free  communities,  has  sanctioned,  or  as  may  seem  under 
the  circumstances  to  be  necessary. 

In  respect  to  a  president  and  secretary  or  secretaries  there  can 
be  no  question.  The  convenience  of  members  and  the  despatch 
of  business  would  point  also  to  messengers  or  pages  as  requisite. 
The  same  may  be  said  perhaps  of  one  or  more  door-keepers,  since, 
if  the  hall  where  the  session  is  held,  were  accessible  to  everybody, 
at  all  hours,  the  functions  of  the  Convention  might  be  seriously 
interrupted,  and  its  dignity  insulted.  With  respect  to  a  sergeant-at- 
arms,  some  doubt  exists.  It  is  a  universal  practice  in  Conventions 
to  appoint  such  an  officer,  and  the  right  of  doing  so  for  certain 
purposes  cannot  be  denied.2 

The  doubt  with  relation  to  the  powers  of  this  officer  comes 
under  the  head  of  maintaining  order  to  be  discussed  a  little 
later  in  this  chapter.3 

Having  engaged  its  hall  and  chosen  its  officers,  the  convention 
must  next  adopt  some  method  of  procedure,  and  to  this  end 
may  establish  all  necessary  rules.  These  are  frequently  modeled 
after  the  rules  of  the  more  numerous  legislative  body  of  the 
State. 

A  Convention  having  provided  itself  with  the  officers  needed 
to  do  or  to  expedite  its  work,  its  attention  would  be  next  directed 
to  the  subject  of  maintaining  order  in  the  transaction  of  its  business, 
and  in  the  conduct  of  its  members.  For  this  purpose  rules  of  order 
are  necessary.  There  is  sometimes  inserted  in  the  Act  calling  the 
Convention,  a  power  to  establish  such  rules  as  should  be  deemed 

1  Jameson,  pp.  455-456.  2  Jameson,  p.  456.  3  See  p.  180,  infra. 


174  CONSTITUTIONAL  CONVENTIONS 

requisite;  but,  without  such  a  clause,  a  Convention  would  clearly 
be  authorized  so  to  do.  It  is  usual,  before  rules  have  been  reported 
by  the  special  committee  for  that  purpose,  to  adopt  temporarily 
those  of  the  last  Convention,  or  of  the  last  State  House  of  Repre- 
sentatives. In  the  absence  of  such  a  vote,  it  has  been  said  that 
the  lex  parliamentaria,  as  laid  down  in  the  best  writers,  is  in  force.1 

Legislative  acts,  under  which  conventions  have  been  assembled, 
have  usually  not  attempted  to  determine  in  any  detail  how  con- 
ventions should  proceed.  A  constitutional  convention  should 
have  freedom  to  determine  its  own  organization  and  procedure.2 

If  the  purpose  is  merely  that  of  proposing  a  few  amendments 
to  the  constitution,  as  has  several  times  been  the  case  in  New 
Hampshire,  the  procedure  should  naturally  differ  from  that  in  a 
convention  which  proposes  to  submit  a  complete  revision  of  the 
constitution,  or  at  least  to  scrutinize  carefully  all  provisions  of 
an  existing  constitution.3 

Jameson  points  out  that  the  convention  may  enter  upon 
its  task  of  framing  or  amending  the  constitution  either  directly 
as  a  body  or  by  resolving  itself  into  a  committee  or  committees. 
Two  of  the  three  common  methods  of  procedure  by  committees 
are  (a)  the  committee  of  the  whole,  or  (b)  to  appoint  a  single 
selected  committee  of  limited  numbers  to  draft  the  amend- 
ments. Jameson  refers  to  only  ten  conventions  which  have 
adopted  the  second  plan,  all  but  two  of  these  occurring  dur- 
ing the  Revolutionary  War  period.4  It  is  obvious  that  the 
reason  for  adopting  this  method  at  that  time  was  that  the 
main  duties  of  those  conventions  was  governmental  rather  than 
constitution-framing. 

The  third  and  most  common  method  of  procedure  is  for  the 
convention  to  apportion  the  work  among  several  committees. 

The  Cyclopaedia  of  American  Government  says  of  these  three 
alternative  methods : 

In  the  framing  of  a  constitution  it,  of  course,  may  be  possible 
for  a  convention  to  conduct  all  of  its  work  directly  in  convention  — 
that  is,  acting,  as  a  body,  without  going  into  committee  of  the  whole 
or  dividing  the  work  among  committees.  But  such  a  plan  would 
be  cumbersome  and  unsatisfactory  and  has  not  been  employed. 

1  Jameson,  pp.  460-461.  2  N.  Y.  Revision  of  Consts.,  p.  60. 

3  N.  Y.  Revision  of  Consts.,  p.  62.       4  Jameson,  pp.  287-289. 


INTERNAL  PROCEDURE  175 

The  plan  ordinarily  employed  is  that  of  using  committees.  In  the 
use  of  committees  three  methods  have  been  employed:  (1)  The 
transaction  of  business  mainly  in  committee  of  the  whole,  with 
perhaps  some  smaller  committees  appointed  to  handle  particular 
matters.  This  method  is  one  which  would  be  apt  to  work  unsatis- 
factorily unless  the  plans  for  a  constitution  had  been  pretty  well 
matured  before  the  meeting  of  the  convention.  The  committee 
of  the  whole  was  used  to  a  large  extent  by  the  federal  convention 
of  1787,  and  was  adopted  also  by  the  Pennsylvania  convention 
which  met  in  1789. 

(2)  In  a  number  of  the  earlier  conventions  the  plan  was  adopted 
of  appointing  a  small  committee,  with  full  power  to  prepare  and 
report  a  draft  of  a  constitution  to  the  full  convention.  This  plan 
was  adopted  by  the  revolutionary  conventions  of  Maryland, 
Virginia,  New  Jersey  and  Pennsylvania  in  1776,  and  by  those  of 
New  York  and  Vermont  in  1777,  but  the  conventions  in  these  cases 
were  assembled  not  only  for  the  framing  of  constitutions,  but  also 
for  the  conduct  of  warlike  operations,  and  the  appointment  of  a 
special  committee  left  the  other  members  of  the  convention  free  to 
attend  to  the  general  duties  of  these  bodies,  which  were  equally 
urgent.  The  Massachusetts  general  court  in  1778  appointed  a 
special  committee  to  frame  a  constitution,  as  also  did  the  Massa- 
chusetts convention  of  1779-80,  the  Tennessee  convention  of 
1796,  and  the  California  convention  of  1849. 

(3)  But  the  more  usual  practice  has  been  for  a  convention  to 
appoint  a  number  of  committees,  and  to  distribute  among  them 
the  several  parts  of  the  constitution,  to  be  considered  and  reported 
upon  to  the  convention  either  in  regular  session  or  in  committee 
of  the  whole.  The  number  ^of  committees  appointed  for  such 
a  purpose  has  varied  considerably,  running  from  four  in  one  case 
to  more  than  thirty  in  others.  The  members  of  such  committees 
have  been  as  a  rule  appointed  by  the  president  of  the  convention. 
One  of  the  most  important  committees  of  a  convention  is  the 
committee  on  style  or  on  arrangement  and  phraseology,  which  is 
usually  appointed  for  the  purpose  of  harmonizing  the  various 
proposals  adopted  by  the  convention  and  putting  a  constitution  into 
something  like  the  final  form  in  which  it  should  be  adopted.1 

It  is  well  not  to  model  these  committees  directly  on  the  com- 
mittees of  the  legislature,  for  if  this  is  done,  some  committees 
will  be  found  overburdened  by  work  and  others  without  a 
single   matter  referred  to  them. 

1  I  Cyc.  American  Govt.,  428. 


176  CONSTITUTIONAL  CONVENTIONS 

See  the  following  further  quotations  on  the  number  and 
make-up  of  committees: 

The  New  York  convention  of  1894  had  thirty-one  committees; 
the  Virginia  convention  of  1901-02,  sixteen;  the  Michigan  conven- 
tion of  1907-08,  twenty-nine;  the  Ohio  convention  of  1912,  twenty- 
five.  The  Illinois  convention  of  1869-70  had  thirty-nine  commit- 
tees, a  number  much  larger  than  was  needed;  of  these  committees, 
six  made  no  report  whatever  to  the  convention.1 

For  a  convention  there  may  be  said  to  be  three  types  of  com- 
mittees: 1,  those  on  the  formal  business  of  the  convention,  such  as 
committees  on  rules,  on  printing,  etc.;  2,  those  whose  functions 
are  largely  technical,  such  as  a  committee  on  arrangement  and 
phraseology;  3,  those  whose  function  would  be  largely  that  of 
obtaining  agreement  upon  broad  questions  of  principle,  such  as 
might  be  to  a  large  extent  a  committee  dealing  with  the  subject 
of  municipal  home  rule.  Of  course,  most  committees  will  have 
duties  of  all  three  types,  but  some  difference  in  size  is  justified. 
Committees  of  the  first  type  should  naturally  be  small;  those  of 
the  second  type  may  well  be  larger,  but  even  for  the  third  type 
committees  having  many  more  than  nine  members  are  not  apt 
to  work  very  effectively.  The  average  size  of  committees  in  the 
Illinois  convention  of  1869-70  was  nine.  The  average  size  of 
committees  in  the  Ohio  convention  of  1912  was  seventeen,  and 
because  of  this  the  committee  work  was  less  effective  than  it 
might  have  been.2 

In  the  Michigan  convention  of  1907-08  the  first  committee  ap- 
pointed was  one  on  permanent  organization  and  order  of  business. 
This  committee  was  afterward  made  permanent.  It  reported 
the  plan  of  committee  organization,  and  made  other  reports  during 
the  session  of  the  convention.  One  of  its  recommendations,  which 
was  adopted,  provided  for  a  weekly  meeting  of  chairmen  of  com- 
mittees, to  be  presided  over  by  the  president  of  the  convention, 
"at  which  meeting  the  chairmen  of  the  several  committees  shall 
report  progress  and  consider  such  other  matters  as  may  be  of 
interest  in  advancing  the  work  of  the  convention."  Such  a  plan, 
if  properly  carried  out  should  do  much  to  unify  the  work  of  a 
Convention.3 

The  committee  on  arrangement  and  phraseology  should  serve  in 
large  part  as  a  central  drafting  organ  to  give  unity  to  the  work 
of  the  convention.4 

1  N.  Y.  Revision  of  Consts.,  p.  63.  2  N.  Y.  Revision  of  Consts.,  p.  64. 

3  N.  Y.  Revision  of  Consts.,  p.  69.  4  N.  Y.  Revision  of  Consts.,  p.  69. 


INTERNAL  PROCEDURE  177 

Separate  committees  will  also  be  necessary  to  deal  with  questions 
which  are  at  the  time  of  great  popular  interest,  because  an  effort 
will  naturally  be  made  to  have  these  subjects  dealt  with  in  the 
constitution.  For  example  if  a  convention  were  assembled  in 
Illinois  today  it  would  be  almost  necessary  to  have  separate  com- 
mittees upon  the  liquor  traffic,  taxation,  the  initiative  and  referen- 
dum, and  apportionment  and  minority  representation.1 

The  following  are  the  more  important  committees  common  to 
three  of  the  most  recent  constitutional  conventions:  Arrange- 
ment and  Phraseology,  Banks,  Corporations,  Counties  and 
Towns,  Education,  Suffrage,  Judiciary,  Bill  of  Rights,  Leg- 
islature, Methods  of  Amendment,  Miscellaneous,  Municipal 
Government,  Rules,  Submission  and  Address,  Taxation.2 

Committees  are  of  course  organs  of  the  convention,  appointed 
for  the  purpose  of  maturing  matters  for  consideration  by  that  body. 
A  committee  should  therefore  at  all  times  be  subject  to  control  by 
a  majority  of  the  convention,  and  should  have  no  power  (by  failing 
to  report  upon  any  matter)  to  prevent  its  consideration  by  the 
convention.3 

The  committee  must  do  the  detailed  work  of  the  Convention, 
and  each  committee  should  have  before  it  as  soon  as  possible  all  of 
the  proposals  relating  to  the  subject  which  it  is  to  consider.  In 
order  to  accomplish  this  purpose,  some  conventions  have  definitely 
agreed  that  after  a  certain  day  no  proposals  should  be  entertained, 
unless  presented  by  one  of  the  standing  committees.4 

Many  convention  rules  have  very  properly  prescribed  the  form 
in  which  the  proposals  should  be  introduced,  requiring  that  all 
proposals  be  in  writing,  contain  but  one  subject,  and  have  titles.5 

A  convention  may  undoubtedly  incur  expense  for  its  legiti- 
mate needs.  We  have  already  seen  that  a  convention  can 
pledge  the  faith  of  the  State  for  the  expense  of  hiring  a  hall.6 
But  it  is  a  far  cry  from  pledging  the  faith  of  the  State  to 
pledging  the  credit  of  the  State.    Thus,  although  the  attempts 

1  N.  Y.  Revision  of  Consts.,  p.  63. 

2  Journal,  Mich.  Conv.  1907-1908,  Vol.  I,  p.  15;  Journal,  Ohio  Conv.  1912, 
p.  41;  Rev.  Record,  N.  Y.  Conv.  1915,  Vol.  I,  pp.  49-52. 

3  N.  Y.  Revision  of  Consts.,  p.  64. 
N.  Y.  Revision  of  Consts.,  pp.  66-67. 


B  N.  Y.  Revision  of  Consts.,  p.  67. 
6  See  p.  173,  supra. 


178  CONSTITUTIONAL  CONVENTIONS 

of  the  earlier  conventions  to  appropriate  money  were  success- 
ful,1 they  have  been  uniformly  unsuccessful  in  later  years,2  and 
the  attorneys  general  of  three  States  have  ruled  against  the 
legality  of  such  a  proceeding.3  Nevertheless,  the  legislature, 
when  called  on,  has  never  failed  to  make  the  necessary  appro- 
priations to  meet  the  expenses  incurred  by  the  convention.4 

Reverting  now  to  the  various  proper  objects  of  expenditure. 
A  convention  undoubtedly  has  power  to  supply  its  members 
with  stationery,  and  probably  with  newspapers.5  Jameson  has 
the  following  valuable  suggestions  to  make,  relative  to  the 
stenographic  reports  and  printing  for  the  convention: 

The  same  principle  applies  to  the  case  of  phonographic  reports 
and  printing  for  the  Convention.  It  would  be  a  most  niggardly 
policy  which  would  refuse  the  expenditure  necessary  to  the  preser- 
vation of  most  full  and  accurate  reports  of  its  debates  and  proceed- 
ings. Upon  this  subject,  however,  there  has  been  very  great  dif- 
ference of  views  in  different  Conventions.  In  many  of  the  States, 
volumes  have  been  published,  containing  both  the  journals  and  the 
debates  of  all  their  Conventions.  In  others,  the  subject  seems  not 
to  have  been  regarded  as  of  any  consequence  whatsoever;  and 
what  little  has  been  preserved  has  been  owing  to  the  private  enter- 
prise of  the  newspaper  press.  The  result  is,  that  the  memorials 
of  the  most  important  public  bodies  ever  assembled  in  those  States, 
are  often  very  meagre,  and  more  often  confused  and  inaccurate. 
Such  a  policy  is  "  penny  wise  and  pound  foolish."  In  after  years, 
when  it  has  become  impossible  to  replace  what  has  been  lost,  more 
enlightened  public  opinion  commonly  finds  cause  to  regret  a  paltry 
economy  which  deprives  history  of  its  most  important  data.  It 
should  be  remembered,  that  our  Conventions  lay  the  foundations 
of  States,  many  of  which  are  to  rival  the  greatness  and  glory  of 
Rome,  of  England,  and  of  France.  In  a  hundred  years  from  now, 
what  treasures  would  they  not  expend,  could  they  purchase  there- 
with complete  copies  of  their  early  constitutional  records  —  docu- 

1  Pennsylvania  (1837);  Louisiana  (1844  and  1864).    Jameson,  pp.  436-437. 

2  Illinois  (1862);  New  York  (1867);  Georgia  (1867  and  1877);  Pennsylvania 
(1873).    Jameson,  pp.  437-438,  441-442,  444-446.     But  see  p.  180,  infra. 

3  Massachusetts  (1779-80);  United  States  (1787);  Illinois  (1862);  New 
York  (1867);  Georgia  (1877);  Pennsylvania  (1873).  Jameson,  pp.  435-436, 
438,  445,  446. 

4  Hon.  J.  H.  Martindale  of  New  York  in  1867;  Hon.  R.  N.  Ely  of  Georgia 
in  1877;  and  Hon.  Samuel  E.  Dimmick  of  Pennsylvania  in  1873.  Jameson, 
pp.  442,  445-446. 

6  Jameson,  pp.  457-458. 


INTERNAL  PROCEDURE  179 

ments  standing  to  their  several  organizations  in  the  same  relation 
as  would  the  discussions  of  those  ancient  sages  who  framed  the 
Twelve  Tables  of  the  Roman  law,  to  the  Republic  of  Rome.1 

The  question  of  printing  the  proceedings  of  the  Minnesota 
convention  of  1857  came  before  the  courts  because  Goodrich, 
the  State  printer,  claimed  that  he  was  entitled,  by  virtue  of  his 
business,  to  do  the  printing,  and  obtained  an  injunction  from  the 
lower  court  to  prevent  Moore,  the  convention  printer,  from  doing 
it.    The  Supreme  Court  said,  in  dissolving  this  injunction: 

But  even  had  the  legislature  intended  and  attempted  to  claim 
and  exercise  the  act  of  providing  a  printer  for  the  constitutional 
convention,  it  would  have  been  an  unauthorized  and  unwarrant- 
able interference  with  the  rights  of  that  body.  The  admission  of 
such  a  right  in  the  legislature,  would  place  the  convention  under  its 
entire  control,  leaving  it  without  authority  even  to  appoint  or 
elect  its  own  officers,  or  adopt  measures  for  the  transaction  of 
its  legitimate  business.  It  would  have  less  power  than  a  town 
meeting,  and  be  incompetent  to  perform  the  objects  for  which  it  con- 
vened. It  would  be  absurd  to  suppose  a  constitutional  convention 
had  only  such  limited  authority.  It  is  the  highest  legislative  as- 
sembly recognized  in  law,  invested  with  the  right  of  enacting  or 
framing  the  supreme  law  of  the  state.  It  must  have  plenary  power 
for  this,  and  over  all  of  the  incidents  thereof.  The  fact  that  the 
convention  assembled  by  authority  of  the  legislature  renders  it  in 
no  respect  inferior  thereto,  as  it  may  well  be  questioned  whether, 
had  the  legislature  refused  to  make  provision  for  calling  a  conven- 
tion, the  people  in  their  sovereign  capacity  would  not  have  had  the 
right  to  have  taken  such  measures  for  framing  and  adopting  a  con- 
stitution as  to  them  seemed  meet.  At  all  events  there  can  be  no 
doubt  but  that,  however  called,  the  convention  had  full  control 
of  all  its  proceedings,  and  may  provide  in  such  manner  as  it  sees 
fit  to  perpetuate  its  records  either  by  printing  or  manuscript,  or 
may  refuse  to  do  either.2 

And  Ruling  Case  Law  says: 

A  constitutional  convention  has  full  control  of  all  its  proceed- 
ings, and  may  provide  in  such  manner  as  it  sees  fit  to  perpetuate  its 
record,  either  by  printing  or  by  manuscript.3 

1  Jameson,  p.  458. 

2  Goodrich  v.  Moore  (1858),  2  Minn.  61,  66. 

3  6  R.  C.  L.,  §  17,  p.  27. 


180  CONSTITUTIONAL  CONVENTIONS 

The  convention  has  equal  control  over  other  printing  neces- 
sarily incidental  to  its  business.    As  Jameson  says: 

In  relation  to  the  printing  for  the  Convention,  the  case  is  very 
clear.  If  the  Act  calling  the  body  provides  for  it,  or  requires  it  to 
be  done  in  a  particular  manner  or  by  a  designated  person,  or  limits 
it  in  amount  or  in  cost,  doubtless  the  Act  should  be  obeyed.  But, 
unless  thus  restricted,  the  power  of  the  body  to  order  its  printing 
to  be  done,  is  as  undoubted  as  to  engage  a  hall  or  the  requisite 
executive  officers.  The  only  alternative  is,  the  employment  of 
secretaries  enough  to  furnish  written  copies  of  all  papers  and  docu- 
ments used  in  the  course  of  its  business.  This  would  be  possible, 
and  such  provision  would,  after  a  sort,  answer  the  purpose.  But 
it  is  certain,  that  the  measures  proposed  would  be  neither  so  well 
understood  nor  so  rapidly  matured,  if  thus  presented,  as  if  they 
were  printed.  To  this  may  be  added,  that  the  expense  of  printed 
would  be  much  less  than  of  written  copies,  and  that  the  length 
of  the  session  would  probably  be  reduced  by  the  use  of  them.  The 
employment,  then,  of  printed  matter,  being  clearly  within  the 
power  of  the  Convention,  as  incident  to  the  speedy  and  con- 
venient execution  of  its  commission,  the  extent  of  it  rests  in  the 
discretion  of  that  body,  and  it  can  bind  the  government,  within 
reasonable  limits,  by  its  contracts  therefor.1 

A  further  important  consideration  is  the  power  of  the  conven- 
tion to  maintain  order  and  punish  for  contempt.  Jameson 
doubts  the  power  of  the  Sergeant-at-Arms  of  the  convention  to 
be  anything  more  than  a  mere  doorkeeper.2  But  that  really  is  a 
subsidiary  question  depending  on  what  power  the  convention 
itself  has  to  enforce  order.    Jameson  says: 

The  power  of  a  Convention  to  discipline  its  own  members  for 
offences  committed  in  its  presence  is  undoubted,  and  of  considerable 
extent.  The  order  and  dignity  of  public  deliberative  bodies  may, 
in  many  ways,  be  so  assailed  as  seriously  to  interfere  with  the 
progress  of  business,  if  not  wholly  to  interrupt  it,  yet  without  the 
commission  of  any  misdemeanor  for  which  the  offenders  would  be 
amenable  to  the  laws.  A  Convention,  having  no  power  to  make 
laws  giving  the  magistrates  jurisdiction  of  such  offences,  unless  it 
could,  by  sanctions  of  its  own,  enforce  its  rules  for  the  preservation 
of  order,  it  would  be  at  the  mercy  of  such  members  as  chose  to  do 
the  work  of  violence,  but  to  do  it  in  such  a  manner  as  to  elude  the 
penalties  for  a  breach  of  the  peace.  To  prevent  this  is  the  princi- 
1  Jameson,  p.  460.  2  Jameson,  pp.  456-457. 


INTEENAL  PROCEDURE  181 

pal  object  of  rules;  and  every  public  assembly,  by  its  very  nature, 
must  have  power  to  make  and  to  enforce  them  in  some  modes 
appropriate  to  its  own  Constitution.  To  Conventions,  however,  it 
must  be  admitted,  the  range  of  sanctions  is  not  very  wide.  For 
minor  offences,  it  would  be  confined,  probably,  to  reprimand,  and 
for  the  more  heinous,  to  expulsion  from  the  body;  or,  in  cases  of 
actual  violence  to  arrest  and  tradition  to  the  public  authorities. 
Power  to  this  extent  I  conceive  to  be  indispensable  to  the  exist- 
ence of  any  deliberative  assembly;  and,  without  assuming  the 
character  of  a  legislature,  with  power  to  create  and  to  invest  offi- 
cers and  tribunals  with  jurisdiction  to  punish  offences,  I  can  im- 
agine it  possessed  of  no  greater.  The  power  to  arrest  an  offender, 
in  the  case  supposed  of  actual  violence,  would  involve  that  of 
safely  keeping,  and,  if  necessary,  of  confining  him  until  he  could 
be  delivered  to  the  officers  of  the  law.  So,  the  power  to  expel  a 
member  would  carry  with  it  that  of  suspending,  which  is  less,  or  of 
suspending  with  forfeiture  of  pay,  temporarily  or  altogether,  ac- 
cording to  the  degree  of  the  offence.  But  the  power  could  not  be 
claimed,  in  the  former  case,  to  imprison  as  a  punishment,  or  for  a 
longer  time  than  should  be  necessary  to  secure  the  arrested  member 
until  he  could  be  transferred  to  the  magistrates,  on  complaint 
regularly  made;  or,  in  the  latter,  to  pass  from  a  forfeiture  of  pay 
(if  that  be  regarded  as  allowable)  to  the  imposition  of  pecuniary 
mulcts.1 

Many  convention  acts  expressly  give  to  conventions  the 
power  to  expel  members  and  punish  its  members  and  officers  by 
imprisonment  or  otherwise.  The  Georgia  convention  of  1867 
expelled  a  member  for  insulting  the  president  of  that  body.2 

The  report  of  the  Judiciary  Committee  to  the  New  York  con- 
vention of  1894  asserts  that  a  convention  has  the  power  of 
expulsion.3 

The  power  of  a  convention  to  discipline  strangers  is  a  differ- 
ent question.  Jameson  denies  this  power,  because  of  his  desire 
to  belittle  conventions  in  comparison  with  legislatures,  for  the 
purpose  of  the  main  thesis  of  his  book,  namely  legislative  su- 
premacy over  conventions.    Thus  Jameson  says: 

As  a  Convention  is  not  a  legislature,  though  a  body,  by  dele- 
gation, exercising  some  legislative  functions,  but  of  so  limited  and 
subordinate  a  character  as  to  entitle  it  to  rank  only  as  a  legislative 

1  Jameson,  pp.  463-464. 

2  Jameson,  p.  466. 

3  Rev.  Record,  N.  Y.  Conv.  1894,  pp.  267-269. 


182  CONSTITUTIONAL  CONVENTIONS 

committee,  it  cannot  do,  even  for  its  own  defence,  acts  within  the 
competence  only  of  a  legislature,  or  of  a  body  with  powers  of  defi- 
nite legislation.1 

But  in  view  of  the  modern  theory  that  a  convention  is  a  legist 
lative  body  of  superior  standing  to  the  ordinary  legislature,2 
it  would  appear  that  a  convention  would  have  at  least  the  same 
degree  of  powers  in  this  particular  as  is  inherent  in  inferior 
legislative  bodies.3 

The  Illinois  convention  of  1862  appointed  a  committee  to  in- 
vestigate charges  against  certain  of  its  members,  with  power  to 
send  for  persons  and  papers  and  to  swear  witnesses.4  The 
Louisiana  convention  of  1864  caused  a  newspaper  editor  to  be 
arrested  and  brought  before  it  for  contempt  for  publishing 
certain  criticisms  of  the  president  and  other  members  of  the 
convention.  In  this  they  had  the  assistance  of  the  Federal 
Department  Commander  and  the  Federal  Provost  Marshal. 
General  Banks  released  the  editor,  however,  before  the  contempt 
proceedings  were  completed.5 

Various  convention  acts  have  contained  provisions  expressly 
authorizing  conventions  to  discipline  strangers.6  The  author 
knows  of  no  case  in  which  this  has  been  done,  however,  either 
with  or  without  the  express  authority  of  the  convention  act. 

In  all  the  foregoing  discussion  the  author  has  assumed  the 
absence  of  anything  in  any  popular  statute,  restricting  or  en- 
larging the  powers  and  duties  of  the  convention.  The  conven- 
tion has  certain  express  powers  and  certain  powers  implied  from 
the  inherent  nature  of  the  body,  all  of  which  are  delegated  to  it 
by  the  people  in  their  sovereign  capacity.  No  constitution  ex- 
cept that  of  the  Federal  government  can  restrict  the  people  in 
delegating  to  a  convention  or  in  withholding  from  a  convention 
any  powers  that  they  choose.7  Therefore  the  language  of  any 
convention  act,  provided  it  be  passed  by  the  people,  should 
be  carefully  consulted  upon  the  question  of  determining  the 
powers  of  any  particular  convention. 

One  very  important  power  of  the  convention  has  been  re- 

1  Jameson,  p.  461. 

2  See  p.  90,  supra. 

3  Jameson,  pp.  466-467.  See  36  Cyc.  851  on  the  contempt  and  other  powers 
of  legislatures. 

4  Jameson,  pp.  468-470.  6  Jameson,  pp.  470-472. 

6  Jameson,  pp.  472-473.  7  See  pp.  165-168,  supra. 


INTERNAL  PROCEDURE  183 

served  for  the  last,  and  that  is  the  power  of  the  convention  to 
reconvene  after  the  election  (to  which  it  submits  its  proposed 
changes  in  the  constitution),  in  order  to  make  and  promulgate 
a  codification  of  the  constitution.  The  convention  act  which 
created  the  Kentucky  convention  of  1890  provided  that,  before 
any  changes  in  the  constitution  should  become  operative,  they 
should  be  submitted  to  the  voters  of  the  State  and  ratified  by  a 
majority  thereof.  Proposed  changes  were  ratified  by  a  popular 
vote  in  April,  1891.  The  convention  reconvened  in  September, 
1891,  to  which  date  they  had  adjourned,  and  made  numerous 
changes  in  the  constitution,  some  of  which  were  claimed  to 
have  been  material,  and  promulgated  the  codified  instrument. 
An  effort  was  made  to  enjoin  the  printing  and  preservation  of 
this  constitution,  but  the  Court  of  Appeals  recognized  as  valid 
the  constitution  promulgated  by  the  convention.1  It  is  prob- 
able that  the  court  was  influenced  by  the  extreme  practical  con- 
venience of  enabling  a  convention  to  make  a  codification  of  the 
instrument  after  the  adoption  of  changes  by  the  people. 

The  convention  which  framed  the  original  constitution  of  Mas- 
sachusetts assumed  that  it  had  a  similar  power,  although  no  such 
power  had  been  granted  it  by  the  convention  act.  The  conven- 
tion act  provided  that  the  constitution  should  not  take  effect  un- 
less ratified  by  a  two  thirds  vote  of  the  people.2  The  convention, 
however,  desiring  to  secure  an  acceptable  constitution,  provided 
that  the  instrument  which  it  drew  should  be  voted  on,  article  by 
article,  by  the  people  of  the  State,  and  that  in  any  town  where  a 
majority  voted  against  an  article,  the  town  meeting  should  sug- 
gest what  changes  would  render  that  article  acceptable. 

In  order  that  the  said  Convention,  at  the  adjournment,  may 
collect  the  general  sense  of  their  constituents  on  the  several  parts 
of  the  proposed  Constitution:  And  if  there  doth  not  appear  to  be 
two  thirds  of  their  constituents  in  favour  thereof,  that  the  Con- 
vention may  alter  it  in  such  a  manner  as  that  it  may  be  agreeable 
to  the  sentiments  of  two  thirds  of  the  voters  throughout  the  State.3 

This  power  of  altering  was  not  exercised,  for  it  appeared  from 
the  returns  that  two  thirds  of  the  voters  were  in  favor  of  the 
instrument  as  drawn;  and  it  was  accordingly  promulgated  by 

1  Miller  v.  Johnson  (1892),  92  Ky.  589. 

2  Journal,  Mass.  Conv.  1779-1780,  p.  6. 

3  Journal,  Mass.  Conv.  1779-1780,  p.  169. 


184  CONSTITUTIONAL  CONVENTIONS 

the  convention  without  change.1  But  the  assumption  by  the 
convention  of  its  power  to  make  changes  after  submission  is  an 
important  precedent.  A  fortiori  would  a  convention  have  the 
power  to  codify  the  constitution  without  making  any  changes. 

An  alternative  method  of  procedure  would  be  for  the  con- 
vention to  submit  on  the  ballot  a  proposition  authorizing  the 
convention,  or  a  committee  thereof  or  some  other  body,  to 
codify  the^  constitution  as  amended  at  that  election,  and  to 
promulgate  the  codification. 

The  legislature  of  Maine,  in  submitting  various  amendments 
in  1875,  submitted  a  proposition  that  the  Chief  Justice  of  the 
Supreme  Court  should  have  power  to  codify  the  constitution, 
by  including  amendments  then  adopted  and  all  prior  amend- 
ments, and  by  striking  out  all  obsolete  matter.  This  proposition 
was  accepted  by  the  voters  and  was  accordingly  followed  by  the 
Chief  Justice,  with  the  result  that  the  constitution  of  Maine 
was  brought  up  to  date  and  put  into  a  much  more  workable 
form  than  formerly.2 

Similarly  a  convention  might  submit  to  the  people  an  or- 
dinance authorizing  itself  to  make  such  a  codification,  although 
it  would  probably  have  power  to  do  this  without  such  au- 
thorization, particularly  in  States  where  the  convention  pro- 
cedure is  extraconstitutional  rather  than  constitutional. 

The  importance  of  such  a  power  of  codification  is  not  to  be 
overlooked. 

Thus  we  see  that  a  convention  ordinarily  has  full  control  over 
its  internal  affairs,  including  its  own  membership,  the  filling  of 
vacancies,  the  obtaining  of  quarters,  the  election  of  officers  and 
employees,  the  establishment  of  rules,  the  purchasing  of  sup- 
plies, the  printing  of  records,  etc.,  the  maintenance  of  internal 
order,  and  even  the  disciplining  of  strangers;  but  these  powers 
may  be  enlarged  or  curtailed  by  popular  vote. 

The  convention's  control  over  the  process  of  submitting  its 
work  for  popular  ratification  will  be  discussed  in  a  later  chapter.3 
Its  power  to  pass  necessary  incidental  legislation  has  already ' 
been  discussed.4 

1  Journal,  Mass.  Conv.  1779-1780,  pp.  186-187. 

2  Thorpe,  Vol.  Ill,  p.  1646,  n.  a. 

3  See  pp.  196-213,  infra.  *  See  pp.  146-147,  supra. 


Chapter  XV 
STATUS  OF  DELEGATES 

The  most  important  questions  relative  to  the  status  of  dele- 
gates to  a  convention  are  as  follows:  Are  they  public  officers 
and  should  they  take  an  oath  to  support  the  existing  consti- 
tution? 

First,  as  to  whether  the  delegates  are  public  officers.  This 
question  arose  in  the  Illinois  convention  of  1862  under  a  pro- 
vision of  the  then  constitution  of  that  State,1  which  provided 
that  judges  of  certain  courts  should  not  be  eligible  to  any  other 
office,  or  public  trust,  of  profit,  during  the  term  for  which  they 
were  elected  or  for  one  year  thereafter.  One  of  the  delegates 
had  been  a  judge  of  one  of  these  courts  within  one  year  prior 
to  his  election  to  the  convention.  His  competitor  contested 
his  election  on  this  ground.  On  the  part  of  the  judge,  it  was 
contended  that  the  words  of  the  constitution  referred  to  the 
distribution  of  powers  by  the  constitution  to  the  three  regular 
branches  of  government,  to  neither  of  which  did  the  conven- 
tion belong.  Even  the  fact  that  the  convention  was  authorized 
by  the  constitution  was  immaterial,  for  the  constitution 
merely  provided  a  means  for  the  people  to  exercise  their  un- 
doubted right  to  hold  a  convention  and  did  not  prescribe  the 
qualifications  of  delegates,  as  it  did  those  of  judges,  members  of 
the  legislature,  and  members  of  the  executive  department.  If 
the  constitution  had  regarded  the  members  of  the  convention 
as  State  officers,  it  would  certainly  have  contained  provisions 
prescribing  their  qualifications,  the  time  and  mode  of  their  elec- 
tion, and  their  powers  and  duties. 

In  behalf  of  the  contestant,  no  great  claim  was  made  that  a 
seat  in  the  convention  was  a  public  office,  but  it  was  contended 
very  strongly  that  it  was  certainly  a  position  of  public  trust  of 
the  greatest  magnitude.     The  convention,  however,  decided 

1  Art.  V,  §  10. 


186  CONSTITUTIONAL  CONVENTIONS 

to  permit  the  judge  to  retain  his  seat.1   Jameson  differs  with  this 
conclusion  in  the  following  language: 

In  my  judgment,  there  can  be  but  little  doubt,  that  a  member  of 
a  Convention  is,  in  the  enlarged  and  proper  acceptation  of  the 
term,  an  "  officer"  of  the  State.  ...  A  Convention  is  a  part  of  the 
apparatus  by  which  a  sovereign  society  does  its  work  as  a  political 
organism.  It  is  the  sovereign,  as  organized  for  the  purpose  of 
renewing  or  repairing  the  governmental  machinery.  That  same 
sovereign,  as  organized  for  the  purpose  of  making  laws,  is  the 
legislature;  as  organized  for  the  purpose  of  applying  or  carrying 
into  effect  the  laws,  it  is  the  judiciary  or  the  executive.  These 
successive  forms  into  which  the  sovereign  resolves  itself,  are  but 
systems  of  organization  having  relation  more  or  less  directly  to 
the  government  of  the  society.  Together,  they  constitute  the 
government.2 

The  position  of  delegate  to  the  Illinois  convention  was  un- 
doubtedly a  position  of  public  trust,  and  even  a  public  office; 
but  was  not,  if  we  regard  such  conventions  as  extraconstitu- 
tional,  a  position  under  the  constitution.  When  a  constitution 
refers  to  the  incompatibility  of  offices,  such  provisions  should 
be  construed  as  relating  solely  to  positions  under  the  constitution 
itself  and  not  to  apply  to  any  other  positions  unless  clearly  so 
stated. 

Attorney-General  Attwill  in  a  recent  opinion  to  the  Massa- 
chusetts legislature,  reaches  the  same  results,  but  on  different 
grounds: 

I  have  come  to  the  conclusion,  with  some  hesitation,  that  the 
position  of  delegate  in  the  convention  is  not  an  office  of  the 
Commonwealth. 

Whatever  may  be  said  in  relation  to  a  member  of  the  Legislature, 
he  at  least  takes  part  in  the  execution  of  one  of  the  powers  of  gov- 
ernment, whereas  a  delegate  in  the  convention  acts  substantially 
as  one  of  a  committee  of  the  people,  whose  power  is  restricted  to 
making  a  report  to  the  people. 

The  whole  purpose  of  the  convention'  is  to  take  under  con- 
sideration the  propriety  of  revising  or  altering  the  present  Con- 
stitution, and  to  report  back  to  the  people  such  revision,  altera- 
tion or  amendment  as  it  may  propose.  Its  powers  are  similar  to 
that  of  a  committee,  its  work  is  entirely  preliminary,  and  it  has 
no  power  to  do  any  act  which  of  itself  has  any  final  effect. 

1  Jameson,  pp.  317-318.  2  Jameson,  pp.  319-320. 


STATUS  OF  DELEGATES  187 

It  is  my  view  that  the  word  "office,"  as  used  in  article  VIII 
of  the  Amendments,  refers  to  a  position  the  incumbent  of  which 
exercises  some  power  of  government,  and  not  to  the  position  of  a 
person  selected  to  act  in  an  advisory  capacity  in  framing  a  scheme 
or  change  of  government  to  be  submitted  to  the  people  for  adop- 
tion or  rejection.1 

It  does  not  appear  necessary  to  debase  the  convention  in 
this  way  in  order  to  reach  his  conclusion.  It  would  be  sufficient 
to  hold  that  the  word  "officer"  in  the  constitution  means 
constitutional  officer.  Mr.  Attwill  had,  however,  debarred  him- 
self from  using  this  ground  by  his  theory  (expressed  earlier 
in  the  same  opinion)  that  the  convention  is  a  constitutional 
proceeding.2 

Let  us  next  take  up  the  question  of  oaths  of  members. 
Jameson  says: 

The  question  whether  the  members  of  a  Convention  should  be 
sworn  before  entering  upon  their  duties,  has  been  variously  an- 
swered in  different  Conventions.  Of  the  whole  number  whose  pro- 
ceedings have  been  accessible  to  me,  about  one  half  only  have 
administered  an  oath.  These  were  the  following  Conventions: 
those  of  Pennsylvania,  1776;  North  Carolina,  1835;  New  Jersey, 
1844;  Missouri,  1845;  Illinois,  1847  and  1862;  California  and 
Kentucky,  1849;  Ohio  and  Indiana,  1850;  Iowa  and  the  two 
Minnesota  Conventions,  in  1857;  and  Maryland,  in  1864.  On 
the  other  hand,  an  oath  was  not  administered  in  the  following  Con- 
ventions: Maryland,  1776  and  1850;  Tennessee,  1796  and  1834; 
Virginia,  1829  and  1850;  Pennsylvania,  1789  and  1837;  New  York, 
1821  and  1846;  Massachusetts,  1779,  1821,  and  1853;  Michigan, 
1850;  Wisconsin,  1847;  and  Louisiana,  1812,  1844,  and  1852. 
In  those  Conventions  in  which  an  oath  has  been  administered, 
the  most  common  form  has  been  substantially  that  used  by  the 
Illinois  Convention  of  1847,  which  was  as  follows:  "You  do  sol- 
emnly swear,  that  you  will  support  the  Constitution  of  the  United 
States,  and  that  you  will  faithfully  discharge  your  duty  as  dele- 
gates to  this  Convention,  for  the  purpose  of  revising  and  amending 
the  Constitution  of  the  State  of  Illinois."  That  administered  in 
Maryland,  in  1864,  beside  the  foregoing,  contained  an  oath  of 
allegiance  to  the  government  of  the  United  States.  A  more  re- 
stricted form  was  employed  in  the  California  Convention  of  1849, 

1  1917  Mass.  House  Doc,  1711.  Compare  Atty.  Gen.  v.  Tillinghast  (1909), 
203  Mass.  539,  543.  2  See  pp.  43-45,  vupra. 


188  CONSTITUTIONAL  CONVENTIONS 

and  in  the  Minnesota  Republican  Convention  of  1857,  namely: 
"You  do  solemnly  swear  that  you  will  support  the  Constitution 
of  the  United  States." 

In  several  of  the  Conventions  in  which  an  oath  has  been  ad- 
ministered, opposition  has  been  made  either  to  taking  any  oath 
at  all,  or  to  taking  one  in  the  form  proposed  by  the  Convention, 
or  prescribed  by  the  Act  under  which  it  assembled. 

It  has  been  urged  that  no  oath  was  necessary  or  proper;  that 
if  the  Convention  was  a  mere  committee,  with  powers  only  of  pro- 
posing amendments,  it  was  a  useless  ceremony  to  bind  it  by  oaths 
to  do  or  not  to  do  acts  which  it  could  do  only  on  the  hypothesis 
that  it  possessed  a  power  of  self-direction  inconsistent  with  its 
supposed  character;  that  it  was  even  dangerous  so  to  do,  as  involv- 
ing an  admission  that,  without  an  oath  or  some  positive  prohi- 
bition, it  would  have  power,  and  perhaps  be  at  liberty,  to  act 
definitively.  On  the  other  hand,  if  the  Convention  was  an  em- 
bodiment of  the  sovereignty  of  the  State  or  nation,  empowered  to 
pull  down  and  reconstruct  the  edifice  of  government,  as  freely  as  the 
sovereign  could  itself  do,  were  it  possible  for  it  to  act  in  person 
and  directly,  then  an  oath  would  be  doubly  futile,  since  it  could  not 
fetter  a  power  that  was  practically  unlimited  and  uncontrollable. 

In  reply  to  this,  however,  it  has  been  forcibly  urged  that,  if  not 
necessary,  it  is  proper  that  a  body  like  a  Convention,  intrusted  with 
important  public  duties,  should  deliberate  under  the  obligation 
of  an  oath;  that  it  could  do  no  harm,  and  might  operate  to  re- 
strain members  from  doing,  for  selfish  or  partisan  ends,  that  by 
which  the  interest  of  the  people  at  large  might  be  jeopardized. 
This  would  become  more  apparent,  when  it  was  considered  that 
an  oath  derives  its  efficacy  more  from  its  tendency  to  remind  the 
taker  of  his  obligation  to  a  higher  power,  than  from  any  liability 
the  taking  of  it  may  impose  upon  him  to  punishment  for  perjury. 

What  form  of  oath  should  be  used  has,  however,  been  more 
frequently  the  subject  of  dispute  than  whether  any  oath  was 
proper.  In  Conventions  to  frame  State  Constitutions,  assuming 
that  an  oath  is  to  be  administered  at  all,  it  is  generally  conceded 
to  be  proper  that  it  should  embrace  an  undertaking  to  be  faith- 
ful and  obedient  to  the  Constitution  of  the  United  States.  This 
could  not  well  be  contested,  since  the  State  Constitutions  are,  by 
the  terms  of  the  Federal  charter,  to  be  valid  only  when  conform- 
able to  its  provisions.  It  is  also  generally  admitted  to  be  proper, 
if  an  oath  be  taken  at  all,  that  the  members  should  be  sworn  hon- 
estly and  faithfully  to  perform  their  duties  as  members  of  the  Con- 
vention.   A  question  of  more  difficulty  is,  whether  the  oath  should 


STATUS  OF  DELEGATES  189 

contain  a  clause  to  support  the  Constitution  of  the  State.  This 
question  has  been  raised  in  several  Conventions,  and  has  been 
uniformly  decided  in  the  negative.  The  reasonings  of  the  op- 
posite parties  upon  this  question  have  been  based  on  their 
respective  conceptions  of  the  nature  and  powers  of  a  Convention. 
Those  who  have  opposed  taking  the  oath  have  done  so  on  the 
ground,  that  to  do  so  would  be  inconsistent  with  their  duties  as 
members  of  a  Convention;  that  they  were  deputed  by  the  sov- 
ereign society  to  pull  to  pieces,  or,  as  some  have  expressed  it, 
"to  trample  under  their  feet,"  the  existing  Constitution,  and  to 
build  up  instead  of  it  a  new  one;  that  to  take  an  oath  to  support  the 
Constitution  of  the  State,  would  be  to  swear  that  they  would  not 
perform  the  very  duty  for  which  they  were  appointed.1 

Among  the  conventions  which  have  raised  the  question  and 
refused  to  take  the  oath  are  those  of  Louisiana  in  1844,  Ohio  in 
1850,  Iowa  in  1857,  and  Illinois  in  1862 2  and  1869. 

In  the  last  two  instances,  the  convention  act  required  an 
oath  to  support  the  constitution  of  the  State.  The  convention 
of  1862  struck  out  the  words  "of  the  State,"  and  the  convention 
of  1869  accomplished  the  same  result  by  adding  after  them  the 
words  "  so  far  as  its  provisions  are  compatible  with  and  appli- 
cable to  my  position,"  thus  recognizing  the  principle  that  the 
convention  was  extraconstitutional.3 

Similar  recognition  was  given  by  the  Virginia  convention  of 
1901-1902.  The  then  existing  constitution  required  all  State 
officers  to  take  an  oath  to  support  the  State  constitution.  It 
was  argued  that  delegates  to  the  convention  were  not  officers, 
and  accordingly  the  oath  was  not  taken.4 

The  constitutions  of  Colorado,  Illinois,  and  Montana  expressly 
provided  that  delegates  to  conventions  must  take  an  oath  to 
support  both  Federal  and  State  constitutions.5  There  is  no 
record  of  the  applicability  of  this  provision  ever  having  been 
questioned. 

In  North  Carolina  the  legislature  in  1835  and  1875  placed 
restrictions  upon  what  the  conventions  should  do,  and  provided 
that  no  delegate  should  be  permitted  to  take  his  seat  until  he 
should  take  an  oath  to  observe  such  restrictions.  In  these 
cases  the  oaths  were  objected  to,  but  were  taken,  and  the 

1  Jameson,  pp.  280-282.  2  Jameson,  p.  282,  n.  1. 

8  Jameson,  p.  284.  4  Dodd,  p.  81,  n.  16. 

5  "Columbia  Digest,"  p.  28. 


190  CONSTITUTIONAL  CONVENTIONS 

restrictions  were  observed.1  A  similar  oath,  required  by  legis- 
lative act,  was  taken  by  the  delegates  to  the  Georgia  con- 
vention of  1833.2  The  same  plan  was  followed  by  the  Louisiana 
legislature  of  1896,  and  the  restrictions  were  substantially 
observed  by  the  convention  which  assembled  in  that  State  in 
1898.3  The  Louisiana  act  of  1896  had  been  submitted  to  and 
approved  by  the  people,  as  had  also  the  act  calling  the  North 
Carolina  convention  of  1835.4  The  Louisiana  convention  of 
1898  expressly  recognized  the  popular  statute  as  binding  upon 
it,  and  the  same  view  is  found  in  a  dictum  of  the  Louisiana 
Supreme  Court.5  It  would  seem  that  such  of  these  conventions 
as  were  called  merely  by  the  legislature6  might,  had  they 
thought  proper,  have  declined  to  take  the  oaths,  and  have 
organized  and  proceeded  to  act  without  doing  so,  just  as  was 
done  by  the  Illinois  convention  of  1862.7 

As  we  have  seen,  the  question  of  taking  an  oath  to  support 
the  State  constitution  has  been  decided  in  the  negative  wherever 
it  has  been  raised,  with  the  single  exception  of  North  Carolina, 
in  which  State  it  had  been  the  people  who  had  required  the 
oath.  This  would  seem  to  be  a  reasonable  decision,  based  on 
the  superiority  of  the  convention  to  the  constitution.  It  would 
be  a  strange  anomaly  to  require  a  superior  to  take  oath  to  obey 
an  inferior. 

Similarly  there  is  a  bit  of  an  anomaly  for  the  legislature  and 
the  Governor,  after  taking  an  oath  to  support  the  existing 
constitution,  to  then  provide  for  the  holding  of  a  convention 
for  the  overturning  of  that  instrument  in  a  manner  unauthorized, 
or  even  impliedly  or  expressly  prohibited,  by  it.  Yet  this  may 
be  justified  by  arguing  that  as  an  oath  to  support  the  State 
constitution  does  not  bind  the  taker  to  commit  treason  against 
the  United  States,  neither  does  it  bind  him  to  forswear  his 
primary  allegiance  to  the  people. 

From  all  the  foregoing  we  see  that  convention  delegates  are 
not  officers  under  the  existing  constitution,  even  in  the  case  of 
a  convention  apparently  authorized  by  that  instrument,  and 
that  it  would  be  extremely  anomalous  for  them  to  take  an  oath 

1  Dodd,  p.  81.  *  Dodd,  p.  81.  8  Dodd,  p.  81. 

4  Dodd,  p.  81,  n.  15. 

5  Dodd,  p.  81,  n.  15;  La.  Ry.  Co.  v.  Madere  (1909),  124  La.  635,  642. 

6  North  Carolina  (1875);   Georgia  (1833). 

7  Dodd,  p.  81,  n.  15. 


STATUS  OF  DELEGATES  191 

to  support  the  State  constitution;  although  they  ought  to  swear 
to  support  the  constitution  of  the  United  States  and  faithfully 
and  impartially  to  perform  the  duties  of  their  position. 

It  may  be  useful  now  to  append  a  few  remarks  in  relation  to 
the  question  of  privileges,  as  applicable  to  Conventions.  Are  the 
members  of  a  Convention,  or  is  the  body  itself,  entitled  to  claim 
the  immunities  usually  accorded  to  the  legislature,  and  to  its 
individual  members,  such  as  exemption  from  legal  process,  from 
service  as  jurors  or  witnesses,  or  from  legal  question  tending  to 
impair  the  freedom  of  their  debates  and  proceedings?  It  is  doubt- 
less essential,  in  order  to  enable  a  legislature,  or  any  other  public 
assembly,  to  accomplish  the  work  assigned  to  it,  that  its  members 
should  not  be  prevented  or  withdrawn  from  their  attendance,  by 
any  causes  of  a  less  important  character;  but  that,  for  a  certain 
time  at  least,  they  should  be  excused  from  obeying  any  other  call, 
not  so  immediately  necessary  for  the  welfare  or  safety  of  the  State; 
they  must  also  be  always  protected  in  the  exercise  of  the  rights  of 
speech,  debate  and  determination  in  reference  to  all  subjects  upon 
which  they  may  be  rightfully  called  to  deliberate  and  act;  it  is 
absolutely  necessary,  finally,  that  the  aggregate  body  should  be 
exempted  from  such  interferences  or  annoyances  as  would  tend 
to  impair  its  collective  authority  or  usefulness.  The  immunities 
thus  indispensable  are,  in  the  case  of  legislatures,  commonly 
secured  by  rules  and  maxims  or  constitutional  provisions,  and  are 
styled  privileges,  as  being  rights  or  exemptions  appertaining  to 
their  office,  to  which  citizens  generally  are  not  entitled. 

Out  of  the  catalogue  of  privileges  above  given,  it  is  not  easy  to 
select  one  with  which  a  Convention  or  its  members  could  safely 
dispense.  It  ought  never  to  be,  as  without  them  it  would  frequently 
be,  in  the  power  of  the  enemies  of  reform  to  prevent  or  postpone 
it  by  arresting,  harassing  or  intimidating  the  delegates  to  the  body 
by  whom  it  is  to  be  accomplished.  But  the  real  difficulty  is,  not  to 
determine  whether  or  not  a  Convention  ought  to  enjoy  those 
privileges,  but  to  ascertain  how  and  by  whom  they  should  be  pro- 
tected and  enforced. 

Upon  this  point,  there  is,  in  my  judgment,  but  one  position 
that  can  be  maintained  with  safety,  and  that  is,  that  Conventions 
must  stand  upon  the  same  footing  with  jurors  and  witnesses;  they 
must  look  to  the  law  of  the  land  and  to  its  appointed  administrators, 
and  not  to  their  own  powers,  for  protection  in  their  office.  If  a 
juror  or  a  witness,  going  or  returning,  is  harassed  by  arrest,  he  does 
not  himself  or  with  his  professional  associates  cite  the  offending 
officer  before  him  for  punishment,  but  sues  out  a  writ  of  Habeas 


192  CONSTITUTIONAL  CONVENTIONS 

Corpus,  and  on  pleading  his  privilege  procures  his  discharge. 
Beside  this,  for  personal  indignity  or  injury,  he  may  appeal  to  the 
laws  for  pecuniary  compensation.  The  same  course  is  doubtless 
open  to  any  member  of  a  Convention,  and  it  furnishes  for  all 
ordinary  cases  a  practical  and  sufficient  remedy.  Behind  those 
bodies  stands  continually,  armed  in  full  panoply,  the  state,  with 
all  its  administrative  and  remedial  agencies,  ready  to  protect  and 
defend  them.1 

Various  convention  acts  declare  expressly  the  privileges  and 
the  immunities  of  the  delegates. 

Thus  it  appears  that  the  delegates,  although  "officers," 
are  not  "  officers  "  within  the  meaning  of  the  constitution.  They 
need  not  take  an  oath  to  support  the  State  constitution  unless 
required  to  do  so  by  a  popular  statute.  They  have  similar 
privileges  and  immunities  to  those  enjoyed  by  members  of  the 
State  legislature  and  jurors,  but  should  look  to  the  courts  to 

enforce  them. 

1  Jameson,  pp.  473-474. 


Chapter  XVI 
SUBMISSION  OF  AMENDMENTS 

Of  the  original  constitutions  of  the  thirteen  colonies,  only 
those  of  New  Hampshire  and  Massachusetts  were  formally 
submitted  to  a  vote  of  the  people,  although  in  several  other 
instances  an  informal  canvass  was  made.  The  Vermont  con- 
stitution of  1786  and  the  Georgia  constitution  of  1789  were 
ratified  by  different  bodies  from  those  that  framed  them, 
these  second  bodies  being  chosen  by  a  direct  vote  of  the  people 
for  that  purpose.  The  New  Hampshire  constitution  of  1792, 
the  Connecticut  constitution  of  1818,  and  the  Maine  constitution 
of  1819  were  submitted  to  a  popular  vote.  New  York  followed 
in  1821 .  The  popular  submission  of  constitutions  first  developed 
in  New  England,  largely,  it  would  seem,  because  there  alone 
the  people  had  in  their  town  meetings  workable  instruments 
for  the  expression  of  popular  sentiment  upon  such  a  question.1 
This  policy  soon  became  general,  although  it  received  a  setback 
in  the  South  during  the  Civil  War,  doubtless  because  of  fear 
of  the  negro  vote.  Most  of  the  reconstruction  constitutions 
were  voted  on  by  the  people,  although  secessionists  were  ex- 
cluded from  voting.  Since  1890  fourteen  State  constitutions 
have  been  adopted.  Seven  of  these  were  submitted  to  a  vote 
of  the  people;  six  were  adopted  without  submission;  and  one, 
that  of  Kentucky  in  1891,  was  altered  by  the  convention  after 
it  had  received  the  popular  approval.2 

Dodd  says: 

In  view  of  the  facts  discussed  above,  I  think  that  it  is  impossible 
to  assert,  as  Judge  Jameson  did,  that  the  submission  of  a  con- 
stitution to  a  vote  of  the  people  is  imperatively  required  by  some 
customary  constitutional  law  of  this  country,  or  even  to  say  that 

1  Dodd,  pp.  62-64. 

2  Dodd,  pp.  64-67.  Arizona  and  New  Mexico  submitted  to  the  people  in  1910. 
Louisiana  in  1913  did  not. 


194j  CONSTITUTIONAL  CONVENTIONS 

a  legislature  in  calling  a  convention  may  effectively  bind  such 
a  body  to  submit  its  work  for  the  approval  of  the  people.  We  are, 
then,  forced  to  the  conclusion,  that  at  present  the  only  rules  posi- 
tively binding  a  convention  to  submit  its  constitution  to  the  people 
are  those  contained  in  the  constitution  which  the  convention  may 
have  been  called  to  revise.  Of  the  thirty-four  state  constitutions 
which  contain  provisions  regarding  constitutional  conventions, 
seventeen  require  that  constitutions  framed  by  such  conventions 
be  submitted  to  the  people.  As  has  been  suggested,  however,  all 
of  the  states,  with  the  exceptions  just  referred  to,  have  followed 
the  same  rule  since  1840.  Of  only  two  states  —  Delaware  and 
Mississippi  —  may  it  be  said  that  the  practice  is  opposed  to  a 
convention's  submitting  the  results  of  its  labors  to  a  vote  of  the 
people.1 

There  are  no  recorded  instances  of  a  convention  refusing 
to  submit  the  fruit  of  its  labors  to  the  people  when  required 
by  express  constitutional  provision.  There  have  been  instances, 
however,  in  which  conventions  have  disobeyed  similar  express 
requirements  of  the  convention  act.  But,  if  a:  convention  act 
voted  on  by  the  people  acquires  from  this  vote  a  supraconsti- 
tutional  force,2  it  would  seem  that  its  provisions  ought  to  be 
even  more  binding  than  those  of  the  constitution. 

In  Virginia,  in  1901,  the  question  of  holding  a  convention 
was  voted  upon  by  the  people  as  required  by  the  constitution 
of  1870;  and  the  subsequent  legislative  act  authorizing  the 
convention  provided  that  the  constitution  framed  by  it  should 
be  submitted  to  a  vote  of  the  people.  However,  the  conven- 
tion did  not  submit  its  constitution,  largely,  it  would  seem, 
for  fear  of  its  being  defeated  by  the  elements  to  be  disfran- 
chised, in  combination  with  interests  adversely  affected  by  the 
new  constitution.3  The  general  sentiment  of  the  bar  of  the 
State  was  that  the  second  act,  not  having  been  voted  on  by 
the  people,  was  not  binding  upon  the  convention.4 

The  Illinois  convention  of  1847  declared  one  article  of  the 
constitution  to  be  in  force  without  submission  to  the  people, 
although  the  convention  act  (purely  legislative  in  its  character) 
required  the  submission  of  all  amendments.5 

1  Dodd,  pp.  68-70.  2  See  pp.  55-56,  supra. 

3  Dodd,  p.  68. 

*  VII  "Va.  Law  Reg.,"  100. 

6  HI.  Laws  1846-1847,  Act  of  Feb.  24,  1847,  Sec.  6;  111.  Const.  1847, 
Schedule,  Art.  4. 


SUBMISSION  OF  AMENDMENTS  195 

These  really  are  the  only  instances  of  conventions  disregard- 
ing the  convention  act  in  this  respect,  although  Dodd  also  cites 
that  of  the  Kentucky  convention  of  1890-1891. 1  This  case 
however,  falls  under  the  implied  power  of  a  convention  to  codify 
and  perfect  its  constitution  after  ratification  by  the  people,2 
for  the  Kentucky  convention  did  obey  the  requirement  that 
it  should  submit  its  constitution  to  the  people.  But  even  if  we 
consider  this  case  as  an  instance  of  disregard  of  the  convention 
act,  it  may  be  differentiated  because  of  the  fact  that  the  Ken- 
tucky act  was  the  creature  of  the  legislature  alone  and  hence 
might  properly  be  disregarded  by  the  convention.  Both  the 
Kentucky  and  Virginia  courts  recognized  these  constitutions 
as  valid;  basing  their  recognition,  however,  on  popular  acquies- 
cence rather  than  on  the  validity  of  the  proceeding  itself.3 

The  provision  for  popular  submission  contained  in  a  con- 
vention act  which  has  not  been  voted  on  by  the  people  has, 
nevertheless,  been  declared  by  the  Pennsylvania  Supreme  Court 
to  be  binding,  on  the  ground  that  the  people  elected  their 
delegates  under  the  act,  relying  on  its  terms.    The  court  said: 

When  the  people  voted  under  this  law,  did  they  not  vote  for 
delegates  upon  the  express  terms  that  they  should  submit  their  work 
to  the  people  for  approval?  Did  not  every  man  who  went  to  the 
polls  do  so  with  the  belief  in  his  heart  that,  by  the  express  con- 
dition on  which  his  vote  was  given,  the  delegates  could  not  bind 
him  without  his  subsequent  assent  to  what  the  delegates  had  done? 
On  what  principle  of  interpretation  of  human  action  can  the  servant 
now  set  himself  up  against  the  condition  of  his  master  and  say  the 
condition  is  void?  Who  made  it  void?  Not  the  electors;  they  voted 
upon  it.4 

We  have  already  seen  that  it  is  the  general  custom  to  submit 
constitutional  changes  to  the  people,  even  when  not  required 
by  the  express  terms  of  the  convention  act.  In  fact,  there  have 
been  expressions  of  opinion  to  the  effect  that  the  action  of  an 
extraconstitutional  convention  has  no  validity  until  ratified  by 
a  popular  vote.    Thus  Ruling  Case  Law  says: 

1  Dodd,  p.  68. 

2  See  pp.  182-184,  supra. 

3  Taylor  v.  Commonwealth  (1903),  101  Va.  829;  Miller  v.  Johnson  (1892),  92 
Ky.  589. 

*  Wells  v.  Bain  (1872),  75  Pa.  39,  52. 


196  CONSTITUTIONAL  CONVENTIONS 

The  new  constitution  prepared  by  a  convention  derives  its 
force  from  the  action  of  the  people  and  not  from  that  of  the  legis- 
lature which  may  have  issued  the  call  for  the  constitutional  con- 
vention.1 

Judge  Morton  of  the  Massachusetts  Supreme  Court  said, 
in  the  Massachusetts  convention  of  1853: 

If  the  people  choose  to  adopt  what  we  submit  to  them,  it  then 
becomes  authoritative  —  not  because  it  comes  from  a  legally 
constituted  body,  but  because  the  people  choose  to  adopt  it.2 

But  both  of  these  proceeded  upon  the  theory  that  it  was 
the  legislature  alone  which  called  the  convention.  If  that  be 
true,  then  certainly  the  work  of  the  convention  must  be  sub- 
mitted to  the  people,  in  order  to  give  the  convention  any 
standing  at  all. 

Having  discussed  the  question  of  necessity  of  submission,  we 
next  come  to  the  question  of  time  of  submission.  When  the 
determination  of  the  time  for  submission  has  been  left  to  the 
convention,  has  the  legislature  the  power  to  change  it?  The 
Lecompton  controversy  in  Kansas  arose  on  just  this  point. 
The  convention,  which  was  pro-slavery,  arranged  for  the 
submission  of  two  alternative  forms  of  its  constitution  at  an 
election  to  be  held  in  December,  1857.  Thereupon  the  free- 
state  legislature,  which  convened  four  days  before  the  date  set 
for  this  election,  voted  to  submit  the  constitutions  in  January. 
Only  slavery  men  participated  in  the  first  election  and  only 
free-staters  in  the  second,  with  the  result  that  the  most  pro- 
slavery  of  the  two  constitutions  was  carried  in  December,  and 
both  were  rejected  in  January.  No  decision  was  reached  as 
to  which  was  the  valid  action,  for  President  Buchanan  and  the 
national  Senate  deadlocked  with  the  national  House  on  the 
question.3 

For  the  legislature  to  change  the  time  for  submission,  if  the 
time  was  set  by  the  people,  would  amount  to  an  illegal  attempt 
at  amending  the  convention  act; 4  and  regardless  of  the  source 

*  6  R.  C.  L.,  §  17,  p.  27. 

2  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  75. 

1  For  a  fuller  discussion,  see  pp.  103,  116,  supra. 

4  See  pp.  97-104,  supra. 


SUBMISSION  OF  AMENDMENTS  197 

of  the  act,  would  amount  to  an  illegal  attempt  to  restrict  the 
convention.1 

A  somewhat  similar  question,  however,  arose  more  recently 
in  New  Hampshire.  The  question  involved  was  as  to  the  time 
of  taking  effect  of  the  amendments  proposed  by  the  convention 
of  1889.  The  Supreme  Court  held  that  although  this  question 
was  a  matter  primarily  for  the  legislature,  yet  as  the  conven- 
tion had  acted  and  issued  an  ordinance  decreeing  that  the 
amendments  should  take  effect  when  voted  on,  the  amendments 
had  so  taken  effect,  and  it  was  thereafter  too  late  for  the  legis- 
lature to  change  the  date.  This  opinion,  although  delivered  in 
1889,  was  not  published  in  the  New  Hampshire  reports  until 
191 1.2  This  same  opinion  points  out  that  the  practice  in  New 
Hampshire  has  been  for  the  legislature  to  delegate  to  the  con- 
vention the  legislative  power  of  determining  when  the  amend- 
ments should  take  effect.  If  no  time  were  fixed,  the  amendments 
would  take  effect  upon  their  ratification. 

A  Constitution,  or  an  amendment,  takes  effect  on  the  day  of 
its  adoption  by  the  people,  unless  otherwise  provided  in  the  exist- 
ing Constitution,  or  by  the  Convention  acting  under  legislative 
authority.3 

When  the  time  for  submission  is  prescribed  by  the  conven- 
tion act,  can  the  convention  change  the  time?  This  must  needs 
be  within  the  inherent  powers  of  a  convention,  even  though  the 
convention  act  be  popular  rather  than  legislative.  Otherwise, 
the  whole  procedure  might  come  to  nought  because  of  a  tech- 
nical restriction.  Such  restrictions  are  directory  rather  than 
mandatory,  the  main  object  being  submission  to  the  people 
at  some  time,  rather  than  submission  at  any  particular  time  or 
not  at  all.  Thus  the  New  York  convention  of  1867  sat  beyond 
the  time  fixed  by  the  convention  act  for  its  work  to  be  sub- 
mitted to  the  people,  for  the  simple  and  compelling  reason  that 
its  work  had  not  then  been  completed.4 

The  Michigan  convention  of  1907-1908  was  required  by  a 
purely  legislative  convention  act  to  submit  its  constitution 
at  the  April  election  of  1908.  The  convention  decided  to  sub- 
mit at  the  November  election  of  that  year,  and  by  mandamus 

1  See  pp.  105-116,  supra.  2  Opinion  of  Justices  (1889),  76  N.  H.  612. 

3  Jameson,  p.  545,  n.  1.  *  Dodd,  p.  82. 


198  CONSTITUTIONAL  CONVENTIONS 

forced  the  Secretary  of  State  to  recognize  that  the  convention 
and  not  the  legislature  was  the  master.1 

The  next  question  to  be  considered  is:  Need  the  convention 
submit  its  constitutional  changes  en  bloc?  That  this  question 
should  arise  at  all  is  probably  due  to  the  idea  that  there  is  some- 
thing inherently  different  between  a  new  constitution  and  an 
amended  constitution.  But  as  the  Supreme  Court  of  Rhode 
Island  has  well  said: 

Any  new  constitution,  therefore,  which  a  convention  would 
form,  would  be  a  new  constitution  only  in  name;  but  would  be 
in  fact  our  present  Constitution  amended.  It  is  impossible  for  us 
to  imagine  any  alteration,  consistent  with  a  republican  form  of 
government,  which  cannot  be  effected  by  specific  amendment  as 
provided  in  the  Constitution.2 

But  in  spite  of  this,  there  have  been  a  number  of  adverse 
expressions  of  opinion,  which  can  all,  however,  be  traced  to  a 
misconception  of  the  famous  opinion  of  the  justices  of  the 
Massachusetts  Supreme  Court  of  1833.3  Thus  Dodd  erro- 
neously says: 

The  Massachusetts  judges  thought  that  there  was  no  power  to 
adopt  specific  amendments  except  in  the  manner  provided  by  the 
constitution,  but  did  not  express  any  opinion  upon  the  question 
whether  a  convention  might  be  called  for  a  general  constitutional 
revision;  their  opinion  cannot  therefore  be  cited  in  support  of 
the  view  that  a  convention  may  not  be  called  for  a  general  revision 
without  constitutional  authorization,  and  such  a  convention  was 
in  fact  held  in  Massachusetts  in  1853 .4 

Yet  what  the  Massachusetts  Supreme  Court  really  said  was 
this: 

The  court  do  not  understand  that  it  was  the  intention  of  the 
House  of  Representatives  to  request  their  opinion  upon  the 
natural  right  of  the  people  in  cases  of  great  emergency,  or  upon 
the  obvious  failure  of  their  existing  constitution  to  accomplish 
the  objects  for  which  it  was  designed,  to  provide  for  the  amendment 
or  alteration  of  their  fundamental  laws;   nor  what  would  be  the 

i  Carton  v.  Secy,  of  State  (1908),  151  Mich.  337,  338-339. 
2  Opinion  of  Justices  (1883),  14  R.  I.  699,  654. 
*  Opinion  of  Justices  (1833),  6  Cush.  573. 
4  Dodd,  p.  45. 


SUBMISSION  OF  AMENDMENTS  199 

effect  of  any  change  and  alteration  of  their  Constitution,  made 
under  such  circumstances  and  sanctioned  by  the  assent  of  the 
people.  Such  a  view  of  the  subject  would  involve  the  general 
question  of  natural  rights,  and  the  inherent  and  fundamental 
principles  upon  which  civil  society  is  founded,  rather  than  any 
question  upon  the  nature,  construction,  or  operation  of  the  existing 
constitution  of  the  Commonwealth,  and  the  laws  made  under  it. 
We  presume,  therefore,  that  the  opinion  requested  applies  to  the 
existing  constitution  and  laws  of  the  Commonwealth,  and  the 
rights  and  powers  derived  from  and  under  them.  Considering  the 
questions  in  this  light,  we  are  of  opinion,  .  .  .  that,  under  and 
pursuant  to  the  existing  Constitution,  there  is  no  authority  given 
by  any  reasonable  construction  or  necessary  implication,  by  which 
any  specific  and  particular  amendment  or  amendments  of  the 
Constitution  can  be  made,  in  any  other  manner  than  that  pre- 
scribed in  the  ninth  article  of  the  amendments  adopted  in  1820.1 

Jameson  construes  the  phrase  "specific  and  particular  amend- 
ment or  amendments"  as  follows: 

The  force  of  these  quotations  may  be  better  apprehended  by 
considering  what  the  Convention  meant  by  a  "specific  amend- 
ment. "  Undoubtedly  it  meant  an  amendment  which  had  been 
distinctly  formulated  in  its  terms  in  the  public  mind,  and  one  of 
which  the  necessity  had  been  generally  acknowledged,  in  contra- 
distinction from  a  change,  indeterminate  in  its  character  and 
extent,  which  might  be  shown  to  be  advisable  upon  a  revision  of 
the  whole  Constitution.  A  specific  amendment,  being  a  definite 
proposition,  might  safely  be  submitted  to  the  people  to  pass  upon, 
yes  or  no;  for  it  required  no  modification  to  adjust  it  to  possible 
changes  in  other  parts  of  the  same  instrument.  Not  so  with  an 
indeterminate  amendment,  to  be  matured  by  discussion,  and  after 
multiplied  adjustments,  and  which  might  turn  out  to  be  a  single 
proposition,  or  a  few  simple  propositions,  or  a  completely  new 
Constitution.    For  such  a  work  only  a  Convention  is  adapted. 

Recurring,  then,  to  the  question  whether,  where  a  Constitu- 
tion contains  no  provision  for  amendments  save  in  the  legislative 
mode,  a  Convention  can  be  called,  the  answer  must  be,  both  upon 
principle  and  upon  precedent,  that  a  Convention  can  be  called, 
certainly  when  a  revision  of  the  whole  Constitution  is  desired,  to 
determine  what  amendments,  if  any,  are  needed,  or,  if  deemed 
advisable,  to  frame  a  new  Constitution.  In  general,  whenever  a 
Convention  is  called,  the  intention  is  to  authorize  a  revision  of 

1  Opinion  of  Justices  (1833),  6  Cush.  573,  574. 


200  CONSTITUTIONAL  CONVENTIONS 

the  entire  Constitution,  though  upon  its  meeting,  the  result  of  its 
labors  may  be  only  to  recommend  specific  amendments.1 

The  phrase  "specific  and  particular  amendment  or  amend- 
ments "  is  the  exact  phrase  used  in  the  amending  clause  of  the 
present  Massachusetts  constitution.  It  is  a  technical  phrase  of 
Massachusetts  constitutional  law  and  means  no  more  or  less 
than  the  mere  word  "amendment."  It  has  always  been  so 
recognized  in  that  State,  as  is  shown  by  the  fact  that  every 
attempt  to  establish  a  new  method  of  constitutional  amend- 
ment has  always  used  the  whole  phrase.  Thus,  according  to 
Jameson's  interpretation  and  to  the  practice  in  Massachusetts, 
any  definite  constitutional  change,  from  the  establishment  of 
a  complete  new  constitution  down  to  the  changing  of  a  mere 
comma  would  be  a  specific  and  particular  amendment. 

The  real  distinction  drawn  by  the  Massachusetts  Supreme 
Court  was  not  between  single  amendments  and  a  general  re- 
vision of  the  constitution,  but  was  between  constitutional  and 
extraconstitutional  methods  of  revision.  The  Supreme  Court 
very  decidedly  does  not  refer  to  the  extraconstitutional  method 
as  consisting  only  in  a  general  revision  of  the  constitution,  but 
on  the  contrary  refers  to  it  as  "the  amendment  or  alteration 
of  their  fundamental  laws"  and  as  "any  change  and  alteration 
of  their  constitution."  That  this  is  the  view  held  by  constitu- 
tional lawyers  in  Massachusetts  is  seen  by  the  following  quota- 
tion from  a  very  recent  local  law  article: 

It  was  assumed  in  the  opinion,  that  the  opinion  requested  ap- 
plies to  the  existing  constitutions  and  laws  of  the  Commonwealth 
and  the  rights  and  powers  derived  from  and  under  them,  and  did 
not  depend  upon  the  natural  right  of  the  people  in  cases  of  great 
emergency,  or  upon  the  obvious  failure  of  their  existing  ^constitu- 
tion to  accomplish  the  objects  for  which  it  was  designed,  to  provide 
for  the  amendment  and  alteration  of  their  fundamental  laws.2 

It  is  also  seen  from  the  fact  that  the  voters  of  Massachusetts, 
in  calling  the  convention  of  1917,  voted  on  the  question: 
"Shall  there  be  a  convention  to  revise,  alter  or  amend  the  con- 
stitution of  the  Commonwealth?"3    The  affirmative  vote  on 

1  Jameson,  pp.  614-615. 

2  Arthur  Lord  in  II  "Mass.  Law  Quarterly,"  1,  24. 
8  Mass.  Gen.  St.  1916,  c.  98,  §  1. 


SUBMISSION   OF  AMENDMENTS  201 

this  question  clearly  authorized  the  convention  to  submit  sep- 
arate amendments.    So  also  the  convention  act  provides: 

Any  such  revision,  alterations  or  amendments,  when  made  and 
adopted  by  the  said  convention,  shall  be  submitted  to  the  people 
for  their  ratification  and  adoption,  in  such  manner  as  the  conven- 
tion shall  direct.1 

The  use  of  the  word  "amendments"  in  the  plural  shows  that 
the  submission  of  separate  amendments  was  within  the  contem- 
plation of  the  act,  and  the  convention  is  authorized  to  use  its 
discretion  in  this  matter  by  the  words  "in  such  manner  as  the 
convention  shall  direct." 

The  convention  to  be  held  in  Indiana  in  1918,  although  called 
for  the  purpose  of  framing  an  entire  constitution,  is  expressly 
authorized  by  the  convention  act  to  submit  any  question  sep- 
arately.2 

The  only  real  distinction  between  a  general  revision  and  revi- 
sion by  separate  amendments  is  that  the  constitutional  conven- 
tion would  be  too  expensive  unless  there  were  a  lot  of  changes 
to  be  made.    As  Judson  says: 

The  convention  is  a  very  proper  form  of  organization  for  fram- 
ing a  complete  constitution.  It  is,  however,  obviously  too  cumber- 
some and  expensive  a  thing  for  mere  amendment,  unless,  indeed, 
the  amendment  in  question  should  be  of  extraordinary  impor- 
tance.3 

Dodd  takes  the  same  view  in  the  following  language: 

The  discussion  heretofore  has  been  based  upon  the  general 
view  that  constitutional  conventions  are  employed  for  the  com- 
plete revision  of  state  constitutions  or  for  the  framing  of  new  con- 
stitutions, and  that,  where  a  general  revision  is  not  desired,  the 
regular  legislative  machinery  is  used  to  initiate  specific  amend- 
ments. This  view  is,  in  the  main,  correct.  Yet  of  course  a  con- 
stitutional convention  when  assembled  may  not  make  a  general 
revision  but  may  simply  propose  specific  amendments.  In  the 
state  of  New  Hampshire  specific  amendments  may  only  be  pro- 
posed by  a  convention.    However,  where  only  a  few  changes  are 

»  Mass.  Gen.  St.  1916,  c.  98,  §  6. 

2  Ind.  1917  Senate  Bill  77,  §  1. 

3  Judson,  Essentials  of  a  Written  Const.,  p.  14. 


202  CONSTITUTIONAL  CONVENTIONS 

desired  the  convention  is  an  expensive  and  cumbersome  instru- 
ment which  will  not  often  be  employed  except  in  case  of  necessity. 
On  the  other  hand  several  constitutions  make  no  provision  for  a 
convention,  and  in  Rhode  Island  the  absence  of  such  provision 
has  been  held  to  prevent  the  holding  of  a  convention  so  that  here 
the  legislative  process  is  the  only  one  available  for  constitutional 
alteration. 

May  not  the  legislative  power  of  initiating  amendments  be  used 
in  such  a  manner  as  to  propose  a  complete  constitutional  revision? 
This  may  be  done  where  the  legislature  is  not  restricted  as  to  the 
number  or  character  of  amendments  which  it  may  propose,  but 
precedent  is  against  the  exercise  of  such  power  by  a  legislature, 
although  in  Rhode  Island  this  is  the  only  way  of  obtaining  a  com- 
plete constitutional  revision.  Two  state  legislatures  have  sub- 
mitted to  the  people  revised  constitutions  in  the  guise  of  amend- 
ments, but  in  both  cases  the  legislative  revisions  were  rejected. 
The  Michigan  legislature  submitted  a  revised  constitution  in 
1874,  and  the  Rhode  Island  legislature  submitted  the  same  in- 
strument twice,  in  two  successive  years,  1898  and  1899. 

Judge  Jameson  has  said  as  to  the  legislative  method  of  propos- 
ing amendments.  "It  ought  to  be  confined,  it  is  believed,  to 
changes  which  are  few,  simple,  independent,  and  of  comparatively 
small  importance.  For  a  general  revision  of  a  Constitution,  or 
even  for  single  propositions  involving  radical  changes  as  to  the 
policy  of  which  the  popular  mind  has  not  been  informed  by  prior 
discussion,  the  employment  of  this  mode  is  impracticable,  or  of 
doubtful  expediency.,,  Judge  Jameson's  point  is  purely  one  as  to 
expediency,  and  it  is  legally  proper,  it  would  seem,  in  the  absence 
of  specific  constitutional  restrictions,  to  propose  to  the  people  by 
the  legislative  process  any  constitutional  alteration  short  of  a 
complete  revision,  or  even  a  complete  revision.1 

The  subsidiary  question  he  touched  on,  namely  the  power  of 
the  legislature  to  submit  a  whole  constitution  in  the  regular 
legislative  method  for  submitting  amendments,  should  be  dis- 
tinguished from  the  question  of  the  power  of  the  legislature  to 
submit  a  whole  constitution,  acting  like  a  constitutional  con- 
vention, which  latter  question  was  discussed  in  an  earlier 
chapter.2 

Reverting  to  the  question  of  separate  submission,  we  find  that 
Jameson  presents  a  strong  argument  in  favor  of  separate  sub- 
mission: 

1  Dodd,  pp.  258-261.  2  Chapter  VI,  supra. 


SUBMISSION  OF  AMENDMENTS  203 

A  Constitution  may  be  wholly  new,  or  it  may  be  an  old  one  re- 
vised by  altering  or  adding  to  its  material  provisions.  It  may, 
also,  in  a  hundred  separate  subdivisions,  contain  but  a  fourth  of 
that  number  of  distinct  topics,  or  each  subdivision  may  be  sub- 
stantive and  independent.  It  is  obvious  that  the  submitting  body, 
weighing  accurately  the  public  sense,  may  determine  whether  the 
whole  Constitution  must  stand  or  fall  as  a  unit,  or  whether  some 
parts,  being  adopted  and  going  into  effect  without  the  rest,  the 
new  system  would  be  adequate  to  the  exigencies  of  the  state,  and 
may  submit  it  as  a  whole  or  in  parts  accordingly.  But  it  is  perfectly 
clear  that  every  distinct  proposition  not  vital  to  the  scheme  as  a 
whole,  or  to  some  other  material  part,  ought  to  be  separately  sub- 
mitted. If  it  were  not  nearly  impracticable,  the  best  mode  would 
be  to  submit  every  distinct  proposition  separately,  so  that  each 
voter  could  vote  yes  or  nay  upon  it,  regardless  of  anything  but  its 
absolute  propriety.1 

Nevertheless  it  is  true  that 

In  far  the  larger  proportion  of  the  cases  in  which  submission 
has  been  made,  it  has  been  of  the  instruments  entire.  This  was 
naturally  true,  in  general,  of  all  such  as  were  the  first  constitutions  of 
their  respective  States. 

The  earliest  departure  from  this  mode  was  in  Massachusetts,  in 
1780,  in  which  the  Frame  of  Government  and  Bill  of  Rights  were 
both  submitted  in  such  a  way  as  to  enable  the  people  to  reject 
the  whole  or  any  part  of  either,  ...  a  course  followed  by  all  the 
subsequent  Conventions  in  that  State,  though  the  Act  calling  the 
Convention  of  1820  left  it  to  the  discretion  of  that  body  to  de- 
termine the  mode  in  which  the  submission  should  be  made.  The 
example  set  by  Massachusetts  in  1780  was  followed  by  New  Hamp- 
shire in  1791,  and  in  the  subsequent  revision  in  1850.  The  Acts 
calling  the  New  York  Conventions  of  1821  and  1846  required 
those  bodies  to  submit  their  proposed  amendments  to  the  people, 
together  or  in  distinct  propositions,  as  to  them  should  seem  expedi- 
ent. Accordingly,  the  Convention  of  1821  provided  that  they 
should  be  submitted  "together,  and  not  in  distinct  parts;"  and 
that  of  1846,  expressing  the  opinion  that  the  amendments  it  pro- 
posed could  not  be  prepared  so  as  to  be  voted  on  separately,  sub- 
mitted them  en  masse  excepting  one,  that  relating  to  "equal 
suffrage  to  colored  persons,"  which  was  submitted  as  a  separate 
article.    Under  a  similar  discretion,  the  Pennsylvania  Convention 

1  Jameson,  pp.  531-532. 


204  CONSTITUTIONAL  CONVENTIONS 

of  1837  submitted  its  amendments  en  masse.  The  Illinois  Con- 
vention of  1847  and  1862,  and  the  Oregon  Convention  of  1857, 
pursued  a  course  similar  to  that  of  the  New  York  Convention  of 
1846,  submitting  the  great  body  of  their  respective  Constitutions 
entire,  but  a  few  articles  relating  to  slavery,  to  the  immigration  of 
colored  persons,  the  public  debt,  and  other  subjects  considered  of 
doubtful  policy,  separately.1 

In  1820  a  convention  act  was  vetoed  in  New  York,  for  the 
following  reason,  among  others: 

Because  the  bill  contemplates  an  amended  Constitution,  to  be 
submitted  to  the  people  to  be  adopted  or  rejected,  in  toto,  with- 
out prescribng  any  mode  by  which  a  discrimination  may  be  made 
between  such  provisions  as  shall)  be  deemed  salutary  and  such  as 
shall  be  disapproved  by  the  judgment  of  the  people.  If  the  people 
are  competent  to  pass  upon  the  entire  amendments,  of  which  there 
can  be  no  doubt,  they  are  equally  competent  to  adopt  such  of  them 
as  they  approve,  and  to  reject  such  as  they  disapprove;  and 
this  undoubted  right  of  the  people  is  the  more  important  if  the 
Convention  is  to  be  called  in  the  first  instance  without  a  previous 
consultation  of  the  pure  and  original  source  of  all  legitimate 
authority.2 

The  more  recent  constitutional  conventions  which  have  been 
held  have  proceeded  in  the  following  manner: 

The  Michigan  convention  of  1907-1908  submitted  a  new 
constitution  entire.3  The  New  Hampshire  convention  of  1912 
submitted  twelve  separate  amendments  of  the  old  constitution.4 
The  Ohio  convention  of  1912  submitted  forty-two  separate 
propositions.5  The  New  York  convention  of  1915  submitted  a 
new  constitution  and  two  additional  separate  propositions.6 

See  the  following  quotations  on  methods  of  submission: 

Conventions  may  submit  separate  amendments  to  be  voted  on 
by  the  people  one  by  one  or  all  together.7 

1  Jameson,  p.  533. 

2  Jameson,  p.  671. 

3  Journal,  Mich.  Conv.  1907-1908,  Vol.  II,  pp.  1502-1583. 
«  Journal,  N.  H.  Conv.  1912,  pp.  562-564. 

B  Journal,  Ohio  Conv.  1912,  pp.  1050-1073. 

6  Rev.  Record,  N.  Y.  Conv.  1915,  Vol.  IV,  p.  4335.  For  a  list  of  earlier  in- 
stances see  Dodd,  p.  259,  n.  243. 

7  McClure,  "State  Const.  Making,"  p.  351. 


SUBMISSION  OF  AMENDMENTS  205 

It  lies  in  the  discretion  of  a  convention  ordinarily  as  to  whether 
its  work  shall  be  submitted:  1,  in  the  form  of  separate  amendments 
to  an  existing  constitution;  2,  as  a  complete  new  constitution;  or 
3,  as  a  new  constitution,  but  with  separate  provisions  which  may 
be  voted  upon  independently.1 

Thus  we  may  conclude  that  a  constitutional  convention  may 
submit  its  changes  in  whatever  form  it  considers  best  adapted  to 
ascertain  and  accomplish  the  will  of  the  people. 

A  related  question  is  the  power  of  the  convention  to  enlarge 
or  reduce  the  electorate  to  which  it  refers  the  amendments. 
Some  constitutional  provisions  and  convention  acts  are  specific 
on  this  point.  Thus  the  act  for  the  holding  of  the  Indiana  con- 
vention of  1918  provides  that  the  "new  constitution  shall  be 
submitted  to  the  legal  voters  of  the  state  of  Indiana  to  be  by 
them  ratified  or  rejected."  2  Another  act  of  the  same  session 
extended  the  vote  in  this  connection  to  women.3 

On  the  other  hand,  the  act  for  the  holding  of  the  Massa- 
chusetts convention  of  1917  merely  provides  that  the  amend- 
ments "shall  be  submitted  to  the  people  for  their  ratification 
and  adoption,  in  such  manner  as  the  convention  shall  direct."  4 

In  cases  where  the  constitution  has  been  held  to  apply  to  a 
convention,  it  has  been  held  that  neither  the  legislature  nor  the 
convention  has  a  right  to  prescribe  other  qualifications  than 
those  set  forth  in  the  constitution.5 

Where  the  constitution  does  not  apply,  however,  Dodd  has 
pointed  out  that 

In  most  of  the  cases  in  which  constitutional  provisions  regard- 
ing the  suffrage  have  not  been  observed,  there  has  actually  been  a 
widening  of  the  suffrage  .  .  .  with  reference  to  the  vote  for  dele- 
gates to  a  convention,  and  .  .  .  with  reference  to  the  popular 
vote  upon  a  proposed  constitution.6 

In  many  of  the  cases  cited  by  Dodd  the  change  was  made  by 
the  legislature  rather  than  by  the  convention,  but  even  these 

1  N.  Y.  Revision  of  Consts.,  p.  71;  Dodd,  p.  258,  n.  243. 

2  Ind.  1917  Convention  Act,  §  1. 

3  Ind.  1917  Senate  Bill  77,  §  1. 

4  Mass.  Gen.  St.  1916,  c.  98,  §  6.  The  Supreme  Court  of  Massachusetts  has 
ruled  (Senate  Doc.  512  of  1917)  that  this  means  submission  to  those  entitled  to 
vote  for  certain  State  officers. 

6  Green  v.  Skumway  (1868),  39  N.  Y.  418,  426. 
8  Dodd,  p.  58,  n.  60. 


206  CONSTITUTIONAL  CONVENTIONS 

serve  to  illustrate  the  inapplicability  of  the  constitutional  qualifi- 
cations of  voters. 

The  convention  which  framed  the  original  constitution  of 
Massachusetts  extended  the  right  of  suffrage  beyond  that  pre- 
scribed by  the  charter  then  in  force.    The  charter  said : 

Provided  alwayes  that  noe  Freeholder  or  other  Person  shall  have 
a  Vote  in  the  Eleccon  of  Members  to  serve  in  any|  Greate  and 
Generall  Court  or  Assembly  to  be  held  as  aforesaid  who  at  the  time 
of  such  Eleccon  shall  not  have  an  estate  of  Freehold  in  Land  within 
Our  said  Province  or  Territory  to  the  value  of  Forty  Shillings 
per  Annu  at  the  least  or  other  estate  to  the  value  of  Forty  pounds 
Sterl'.1 

And  the  constitution  framed  by  the  convention  increased 
these  qualifications  fifty  per  cent  as  follows: 

And  at  such  meetings  every  male  inhabitant  of  twenty-one 
years  of  age  and  upwards,  having  a  freehold  estate  within  the 
commonwealth,  of  the  annual  income  of  three  pounds,  or  any  es- 
tate of  the  value  of  sixty  pounds,  shall  have  a  right  to  give  in  his 
vote  for  the  senators  for  the  district  of  which  he  is  an  inhabitant.2 

Nevertheless,  the  various  towns,  on  the  recommendation  of 
the  legislature,  permitted  all  adult  freemen  to  vote  for  delegates; 
and  the  convention,  following  the  same  recommendation,  chose 
the  adult  freemen  as  the  electorate  to  represent  the  people,  in 
passing  upon  the  proposed  constitution. 

It  may  be  well  to  give  a  tabulation  of  some  instances  in  which 
the  electorate  has  been  altered  for  the  purpose  of  voting  on 
constitutional  changes: 

In  the  following  case  the  legislature  plus  the  electorate  ex- 
tended the  electorate:  New  York  (1821). 3 

In  the  following,  the  legislature  alone  did  the  extending: 
New  Jersey  (1844),4  Rhode  Island  (1841  and  1842).5 

In  one  case  the  convention  did  so,  acting  with  assent  of  both 
legislature  and  electorate:  Massachusetts  (1780).6 

1  Thorpe,  Vol.  Ill,  pp.  1878-1879. 

2  Mass.  Const.,  Ch.  I,  §  II,  Art.  II.    Similarly  as  to  other  officers. 

3  Laws  of  N.  Y.,  1821,  c.  90. 

4  Laws  of  N.  J.  1843-1844,  p.  Ill;  Bott  v.  Secy,  of  State  (1898),  62  N.  J.  L. 
107,  121,  123-124. 

6  Mowry,  The  Dorr  War,  pp.  119-120, 283. 
6  See  above  on  this  page. 


SUBMISSION  OF  AMENDMENTS  207 

In  two  cases  the  convention  did  so,  with  the  assent  of  the 
legislature:   Virginia  (1830),1   Illinois  (1869) ? 

In  the  following,  the  convention  on  its  own  initiative  ex- 
tended the  electorate:  Louisiana  (1845  and  1852) ,3  Michigan 
(1835),4  Texas  (1845),5  Virginia  (1851),6  West  Virginia  (1863),7 
Tennessee  (1834),8  Kansas  (1859),9  Arkansas  (1868).10 

Two  of  these  conventions  reduced  the  electorate  in  some  par- 
ticulars as  well  as  extending  it  in  others:  Tennessee  (1834),11 
and  Arkansas  (1868)  .12 

Electorates  have  also  been  reduced  by  oaths  of  allegiance  re- 
quired by  reconstruction  acts,  and  by  the  following  conventions: 
Maryland  (1864),  Missouri  (1865),  New  York  (1867) ,13  Such 
oaths  have  been  held  to  be  ex  post  facto  laws,  when  required  as  a 
condition  precedent  to  holding  office  or  pursuing  certain  lines 
of  business.14  But,  as  voting  is  not  a  property  right,  it  is  to  be 
doubted  if  the  principle  of  these  cases  would  be  extended  to  pro- 
hibit the  application  of  the  same  restriction  to  voters. 

The  Supreme  Court  of  Missouri  has,  in  the  following  lan- 
guage, sustained  the  validity  of  the  ordinance  of  the  conven- 
tion of  1865,  which  reduced  the  electorate  to  those  who  could 
take  the  test  oath: 

As  the  representatives  ot  the  people,  clothed  with  an  authority 
so  ample  as  that,  certainly  its  power  to  prescribe  the  means  by 
which  it  was  thought  best  to  ascertain  the  sense  of  the  qualified 
voters  of  the  State  upon  that  instrument  cannot  be  seriously  ques- 
tioned. The  ordinance  had  in  itself  every  element  necessary  to  give 
it  legal  force  and  effect,  and  was  therefore  binding  upon  the  voter.15 

The  Justices  of  the  Supreme  Court  of  Massachusetts  have, 
however,  recently  given  an  opinion  which  apparently  holds  that 
the  electorate  prescribed  by  the  constitution  for  voting  for  cer- 
tain mentioned  offices  and  on  amendments  submitted  by  the 

1  Va.  Acts,  1828-1829,  c.  15;   Thorpe,  Vol.  Ill,  p.  3825. 

2  111.  Act,  Feb.  25, 1869;   Thorpe,  Vol.  II,  p.  1047. 

3  Thorpe,  Vol.  Ill,  p.  1410;  Vol.  Ill,  p.  1428. 

4  Thorpe,  Vol.  IV,  p.  1942. 

6  Thorpe,  Vol.  VI,  p.  3566.  6  Thorpe,  Vol.  VII,  p.  3850. 

7  Thorpe,  Vol.  VII,  p.  4011.  8  Thorpe,  Vol.  VI,  p.  3441. 
9  Thorpe,  Vol.  II,  p.  1259.                           10  Thorpe,  Vol.  II,  p.  330. 

n  Thorpe,  Vol.  VI,  p.  3441.  u  Thorpe,  Vol.  II,  p.  330. 

13  Jameson,  p.  522. 

14  Cummings  v.  Missouri  (1866),  4  Wall.  277,  318. 
16  State  v.  Neal  (1868),  42  Mo.  119,  123. 


208  CONSTITUTIONAL  CONVENTIONS 

legislative  method  is  the  only  electorate  which  can  vote  under 
the  convention  method. 
They  first  say: 

The  validity  and  powers  of  this  convention  are  not  necessarily 
involved  in  these  questions.  Without  discussing  that  subject,  we 
are  of  opinion  that  ...  if  the  convention  to  revise  and  alter  the 
Constitution  is  held  under  the  Constitution,  etc. 

This  is  their  premise,  assumed  by  them  merely  for  the  pur- 
poses of  argument;  doubtless  because  they  rightly  felt  that,  if 
the  convention  is  authorized  by  some  &riraconstitutional  power, 
they,  the  justices  of  the  court,  being  constitutional  officers, 
would  have  no  right  to  pass  upon  any  questions  involved.  Act- 
ing on  the  foregoing  premise,  namely,  that  the  convention  is 
held  under  the  constitution,  which  however  they  refuse  to  de- 
cide, the  justices  say: 

The  Constitution  of  Massachusetts  in  its  original  form  defined 
the  qualifications  of  the  electorate.  Chapter  1,  Section  II,  Ar- 
ticle II;  Chapter  1,  Section  III,  Article  IV.  These  qualifica- 
tions have  been  modified  by  Articles  III,  XVII,  XX,  XXVIII, 
XXXI  and  XXXII  of  the  Amendments.  The  words  of  the  Con- 
stitution as  it  now  stands  are  "Every  male  citizen  of  twenty -one 
years  of  age  and  upwards,  excepting  paupers  and  persons  under 
guardianship,  who  shall  have  resided  within  the  Commonwealth 
one  year,  and  within  the  town  or  district  in  which  he  may  claim 
a  right  to  vote  six  months  next  preceding  any  election  .  .  .  shall 
have  a  right  to  vote"  for  governor  and  other  officers.  Although 
these  provisions  in  express  terms  relate  only  to  the  qualifications 
of  voters  for  the  elective  officers  therein  named,  it  is  a  necessary 
and  imperative  implication  that  these  electors  and  these  only  can 
be  treated  as  qualified  to  vote  to  change  the  Constitution.  The 
words  "qualified  voters"  as  used  in  Article  IX  of  the  Amend- 
ments, wherein  are  the  provisions  for  amendments  to  the  Con- 
stitution, mean  the  voters  qualified  according  to  the  requirements 
of  the  Constitution.  It  is  an  essential  and  inevitable  limitation 
upon  the  power  vested  in  the  legislative  body  of  a  state  estab- 
lished by  a  written  Constitution  that  it  cannot  provide  for  the 
revision  or  change  of  the  frame  of  government  except  in  a  lawful 
and  orderly  method  and  by  the  body  of  electors  determined  ac- 
cording to  the  terms  of  that  frame  of  government.  The  "people" 
who  have  a  right  to  vote  upon  any  essential  aspect  of  that  revision 
and  change,  either  for  members  of  the  convention  or  the  acceptance 


SUBMISSION  OF  AMENDMENTS  209 

or  rejection  of  its  work,  are  the  people  who  have  a  right  to  vote 
for  state  officers  and  upon  state  questions,  namely,  the  voters  as 
described  by  the  Constitution  itself.  It  is  elementary  that  the 
existing  Constitution  continues  in  full  force  and  effect  until  changed 
or  destroyed  by  act  of  the  sovereign  people.  It  seems  indisputable 
that  there  is  no  power  under  the  Constitution,  except  the  sover- 
eign people  acting  in  accordance  with  their  self-imposed,  limiting 
methods  of  procedure,  to  enlarge  the  electorate  so  as  to  include  as 
voters  persons  not  eligible  to  vote  upon  amendments  to  the  exist- 
ing Constitution.  .  .  .  The  Legislature  can  proceed  only  under 
the  Constitution.  It  would  be  contrary  to  its  duty  to  that  Con- 
stitution to  provide  for  its  revision  or  alteration  by  a  body  of  elec- 
tors, whose  qualifications  were  different  from  those  ascertained  by 
the  terms  of  that  Constitution.  The  power  of  the  Legislature  to  en- 
act that  women  may  be  members  of  or  vote  for  local  or  other 
subordinate  boards  of  officers  (See  Opinions  of  Justices,  115  Mass. 
602;  136  Mass.  578)  is  of  a  different  character.  The  existence  of 
that  power  touching  officers  created  by  the  Legislature  affords  no 
basis  for  argument  that  like  power  exists  to  change  the  electorate 
established  by  the  Constitution  for  state  affairs.1 

In  opposition  to  this  opinion,  it  may  be  argued  as  follows: 
First,  the  court  is  proceeding  upon  a  premise  which  is  rather 
questionable,  and  on  the  validity  of  which  the  court  is  therefore 
wise  in  refusing  to  pass,  namely,  that  the  constitution  author- 
izes a  popular  convention.2 

Secondly,  the  court  assumes,  as  its  second  premise,  that  the 
constitution  of  Massachusetts  establishes  an  "electorate  for 
state  affairs";  whereas  it  is  arguable  from  an  inspection  of 
that  instrument  itself,  that  the  electorate  which  it  establishes 
relates  merely  to  the  election  of  certain  specified  State  officers, 
and  possibly  to  the  ratification  of  amendments  submitted  by 
the  legislature.3  The  theory  that  the  constitution,  by  pre- 
scribing an  electorate  for  certain  officers,  thereby  impliedly 
prescribes  the  same  electorate  for  all  State  affairs,  may  well 
be  a  violation  of  the  principle  of  construction  of  instru- 
ments, that  the  express  mention  of  one  thing  amounts  to 

1  Mass.  1917  Senate  Doc.  512. 

2  See  pp.  45,  50,  supra. 

3  Mass.  Const.,  Amendments  III,  XVI,  XVII,  and  possibly  IX.  The 
Justices  themselves  say,  in  this  very  opinion:  "these  provisions  in  express 
terms  relate  only  to  the  qualifications  of  voters  for  the  elective  officers  therein 
named." 


210  CONSTITUTIONAL  CONVENTIONS 

an  implied  exclusion  of  all  else.1  This  opinion  of  the  Massa- 
chusetts court,  if  carried  to  its  logical  conclusion,  would  render 
invalid  the  partial  suffrage  laws,  whereby  in  many  States  women 
may,  by  legislative  act,  vote  for  such  State  officers  as  are  not 
expressly  mentioned  in  the  constitution,2  which  laws  have 
been  held  valid  in  actual  litigation.3 

Thirdly,  the  court  ignores  all  of  the  instances  in  which,  with 
uniform  success,  legislatures  and  conventions  have  enlarged  or 
reduced  the  electorate.4  Is  it  not  arguable  that,  if  there  had 
been  any  doubt  of  the  legality  of  such  changes,  it  would  have 
been  raised  in  the  courts  before  this? 

Fourthly,  thecourt's  opinion  is  sustainable  upon  another  ground 
than  that  mentioned  by  them,  namely,  upon  the  ground  that 
the  legislature  cannot  amend  what  the  people  have  enacted.5 

For  these  reasons,  we  may  well  wait  for  a  decision  by  the 
Massachusetts  court  in  a  litigated  case,6  before  concluding  that 
this  is  their  final  view  on  the  subject.  The  last  above  reason 
suggests  a  related  ground  on  which  the  court  might  have  based 
its  opinion,  and  which  if  valid,  would  bar  the  convention  from 
changing  the  electorate,  although  it  would  not  have  barred  the 
inclusion  of  such  a  change  in  the  original  act.  The  ground  is, 
that  the  voters,  in  adopting  the  act,  used  the  term  "people" 
in  its  commonly  accepted  sense  of  "voters,"  and  that  this  use 
of  the  word  is  binding  both  on  the  legislature  and  the  conven- 
tion. But  on  the  other  hand,  it  is  equally  arguable  that  this 
word  was  used  in  the  light  of  the  many  precedents  in  which 
conventions  have  picked  what  electorate  should  represent  the 
people. 

Jameson  discusses,  as  follows,  the  alteration  of  the  electorate 
by  a  convention: 

1  This  legal  maxim  reads:  " Expressio  unius  est  exclusio  aUerius.'*  It  is 
possible  to  construe  the  recent  Massachusetts  opinion  as  changing  it  to  read: 

Expressio  unius  est  inclusio  omnium  aliorum." 

2  111.  Laws  of  1913,  p.  333;  Ind.  1917  Senate  Bill  77;  Ohio  Act  of  1917; 
Michigan  Act  of  1917;  Rhode  Island  Act  of  1917;  Nebraska  Act  of  1917;  North 
Dakota  Act  of  1917. 

3  "  The  Constitution  refers  only  to  elections  provided  for  by  that  instrument." 
Scown  v.  Czarnecki  (1914),  264  111.  305,  312;  approved  in  People  v.  MUitzer 
(1916),  272  IU.  387,  392. 

4  See  the  instances  given  immediately  supra. 
6  See  pp.  97-104,  supra. 

6  Woods  v.  Woburn  (1915),  220  Mass.  416,  418;  Young  v.  Duncan  (1914), 
218  Mass.  346,  351,  and  cases  therein  cited. 


SUBMISSION  OF  AMENDMENTS  211 

Of  these,  the  largest  proportion  were  cases  in  which  submission 
was  made  to  the  electors  plus  certain  designated  classes  of  per- 
sons previously  not  entitled  to  vote  at  such  elections,  and  the 
residue,  of  cases  in  which  submission  was  made  to  the  electors 
minus  certain  classes  of  persons  thus  entitled,  according  to  existing 
laws. 

In  most  of  these  cases  the  effect  was,  on  the  whole,  doubtless  to 
increase  the  existing  electorate.  In  five  of  them  the  Convention 
Acts  expressly  authorized  the  Conventions  to  submit  in  the  man- 
ner described,  but  in  the  residue  no  such  authority  was  given  or 
pretended. 

It  is  evident  that  in  these  cases,  a  new  principle  was  introduced, 
namely,  that  of  submitting  proposed  changes  in  the  fundamental 
law  to  persons  other  than  the  body  entrusted  with  the  electoral 
function  under  existing  laws;  in  some  cases,  to  citizens  forming  no 
part  of  the  existing  governmental  system;  in  others,  to  a  part 
only  of  the  citizens  comprised  in  that  system.  Such  a  submission, 
especially  when  made  to  persons  not  forming  a  part  of  the  exist- 
ing electorate,  it  is  conceived,  was  not  only  a  novelty  but  a  capital 
innovation,  upon  which  might  hang,  for  the  States  concerned, 
the  most  weighty  consequences;  and,  unless  the  principles  which 
ought  to  govern  in  the  enactment  of  fundamental  laws  are  miscon- 
ceived, it  was  unconstitutional  and  in  the  highest  degree  dangerous.1 

But  the  uniform  success  of  such  electoral  changes  shows 
that,  even  if  unconstitutional,  they  are  nevertheless  valid  and 
effective.  Besides,  there  is  no  reason  to  suppose  that  a  matter 
not  covered  by  the  constitution,  and  which  the  constitution 
probably  could  not  control  if  it  tried,2  can  be  unconstitutional. 

The  Indiana  constitution  does  not  provide  for  the  holding 
of  conventions,  but  does  provide  that  only  males  shall  vote  on 
proposed  constitutional  amendments.  Nevertheless,  the  legis- 
lature has  decreed  that  women  may  vote  on  the  constitutional 
amendments  which  may  be  submitted  by  the  coming  con- 
vention,3 thus  clearly  showing  that  the  opinion  in  that  State 
is  to  the  effect  that  general  constitutional  provisions  relative 
to  the  qualifications  of  voters  do  not  apply  to  amendments 
submitted  by  an  extraconstitutional  convention. 

1  Jameson,  pp.  516-517. 

2  See  pp.  50-52,  166-167,  supra. 

8  Ind.  Const,  II,  2;  Ind.  1917  Senate  Bill  77. 


212  CONSTITUTIONAL  CONVENTIONS 

An  objection  is  sometimes  made  that  if  the  convention  has 
the  power  to  enlarge  the  electorate  in  order  to  get  a  better 
expression  of  public  opinion,  they  have  an  equal  power  to  reduce 
the  electorate;  and  this  is  urged  in  support  of  the  theory  that 
they  have  no  power  to  tamper  with  the  electorate  at  all;  but 
this  argument  can  be  met  by  quoting  the  following  passage 
from  the  Constitution  of  the  United  States: 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any  state,  on 
account  of  race,  color,  or  previous  condition  of  servitude.1 

As  to  method  of  submission  we  have  already  seen  that  an 
extraconstitutional  convention  has  the  power,  after  the  sub- 
mission of  changes  to  the  people,  to  reconvene  and  codify  the 
new  constitution.2  The  manner  of  conducting  the  election  at 
which  the  amendments  are  submitted  is  usually  entrusted  by 
the  convention  act  to  the  convention.  And  in  this  connection, 
the  convention  has  the  power  to  pass  all  necessary  incidental 
legislation.3  But  where  the  legislature  attempts  to  prescribe 
the  method,  there  is  at  least  one  decision  to  the  effect  that 
the  legislative  provisions  are  binding,  particularly  when  ratified 
by  the  people. 

The  power  claimed  for  the  convention  is,  by  ordinance,  to  raise 
a  commission  to  direct  the  election  upon  the  amended  constitution, 
in  the  city  of  Philadelphia,  and  to  confer  power  on  this  commission 
to  make  a  registration  of  voters,  and  furnish  the  lists  so  made 
to  the  election  officers  of  each  precinct;  to  appoint  a  judge  and  two 
inspectors  for  each  division,  by  whom  the  election  therein  shall  be 
conducted.  This  ordinance  further  claims  the  power  to  regulate 
the  qualifications  of  the  officers  thus  appointed  to  hold  the  election 
and  to  control  the  general  returns  of  the  election.  It  is  clear,  there- 
fore, that  the  ordinance  assumes  a  present  power  to  displace  the 
election  officers  now  in  office  under  the  election  laws  for  the  city, 
to  substitute  officers  appointed  under  the  authority  of  the  con- 
vention, and  to  set  aside  these  election  laws  so  far  as  relates  to 
the  qualification  of  the  officers  and  the  manner  in  which  the  general 
returns  shall  be  made,  and  in  other  respects  not  necessary  to  be 
noticed.    The  authority  to  do  this  is  claimed  under  the  fifth  section 

1  U.  S.  Const.,  Amendment  XV,  §  1. 

2  See  pp.  182-184,  supra. 

3  See  pp.  146-147,  supra. 


SUBMISSION   OF   AMENDMENTS  213 

of  the  Act  of  1872,  giving  the  convention  power  to  submit  the 
amendments,  at  such  time  or  times,  and  in  such  manner  as  the 
convention  shall  prescribe,  subject,  however,  to  the  limitation  as 
to  the  separate  submission  of  amendments  contained  in  this  act. 
It  is  argued  that  the  manner  of  submission  confers  a  power  to 
conduct  the  election  upon  the  matter  submitted.  To  state  the  propo- 
sition is  to  refute  it,  for  the  manner  of  submitting  the  amend- 
ments is  a  totally  different  thing  from  conducting  the  election 
upon  the  submitted  amendments.1 

But  the  question  was  really  one  of  the  power  of  popular, 
rather  than  of  legislative,  control. 
One  final  suggestion: 

When  the  work  of  a  convention  is  submitted,  it  would  be  desir- 
able to  have  mailed  to  each  voter  the  text  of  proposals,  together 
with  explanations.  For  a  populous  state  this  would  be  expensive, 
but  the  expense  would  justify  itself.2 

From  all  the  foregoing,  we  may  deduce  as  follows:  In  the 
absence  of  popular  restrictions  on  the  convention,  or  in  the 
presence  of  authorization  to  determine  the  manner  of  sub- 
mission, the  general  authority  of  the  convention  over  the 
manner  of  submission  will  include  the  date  of  the  election,  the 
election  officials,  the  time  at  which  the  amendments  shall  take 
effect  and  even  the  choice  of  the  particular  electorate  who 
shall  be  employed  by  the  convention  to  represent  the  will  of 
the  people.  The  right  to  determine  when  the  changes  shall 
take  effect  includes  the  right  to  decree  that  they  shall  take  effect 
when  codified  and  promulgated  by  the  reconvened  convention. 

i  Wells  v.  Bain  (1872),  75  Pa.  39,  53-54. 
2  N.  Y.  Revision  of  Consts.,  p.  72. 


Chapter  XVII 

THE  DOCTRINE  OF  ACQUIESCENCE 

One  further  matter  deserves  brief  attention,  namely,  the 
question  as  to  what  gives  validity  to  constitutional  changes 
adopted  by  the  convention  method.  A  mere  lapse  of  time  has 
been  held  to  validate  amendments  adopted  in  violation  of 
provisions  of  the  existing  constitution.  Thus  in  1894  the 
Supreme  Court  of  Colorado  refused  to  inquire  into  the  validity 
of  an  amendment  which  had  been  in  operation  for  ten  years.1 
In  1903  the  Supreme  Court  of  Nebraska  refused  to  inquire  into 
the  validity  of  an  amendment  adopted  sixteen  years  before.2 
Dodd,  however,  says: 

Several  expressions  in  the  cases  discussed  above  would  raise 
the  inference  that  an  amendment  might  be  secure  from  judicial 
attack  simply  because  it  had  been  long  acquiesced  in  and  uncon- 
tested. This  view  can  hardly  be  a  proper  one.  In  the  cases  above, 
acquiescence  was  coupled  with  the  fact  that  the  amendments 
made  essential  changes  in  governmental  organization,  and  such 
changes  having  been  accomplished,  were  regarded  as  making  the 
question  a  political  one.  But  an  amendment  which  did  not  make 
an  essential  change  in  the  governmental  organization  —  one  the 
annulling  of  which  would  not  disarrange  the  governmental  ma- 
chinery —  may,  it  would  seem,  be  attacked  as  invalid  at  any  time, 
just  as  a  law  acted  upon  perhaps  for  years  as  valid,  may  be  then 
held  unconstitutional  by  the  court.  Mere  lapse  of  time  raises  no 
presumption  in  favor  of  the  validity  of  either  a  law  or  amendment, 
but  long  acquiescence  without  contesting  its  validity  may  be 
considered  as  having  weight  in  determining  the  question  of  con- 
stitutionality.3 

Recently  in  North  Dakota  a  mere  custom  of  the  Supreme 
Court,  favorable  to  the  tenure  of  the  Judges  themselves,  was 

1  NesbU  v.  People  (1894),  19  Col.  441,  455. 

2  Weston  v.  Ryan  (1903),  70  Neb.  211,  218. 

3  Dodd,  pp.  225-226. 


THE  DOCTRINE  OF  ACQUIESCENCE  215 

held  to  have  become  ingrafted  on  to  the  constitution  by  mere 
lapse  of  time  and  acquiescence.1 

In  the  case  in  which  the  Virginia  convention  of  1901  pro- 
mulgated a  constitution  without  complying  with  the  require- 
ment that  it  submit  this  constitution  to  the  people,  the  court 
held: 

The  Constitution  having  been  thus  acknowledged  and  accepted 
by  the  officers  administering  the  government  and  by  the  people  of 
the  State,  and  being,  as  a  matter  of  fact,  in  force  throughout  the 
State,  and  there  being  no  government  in  existence  under  the  con- 
stitution of  1869  opposing  or  denying  its  validity,  we  have  no 
difficulty  in  holding  that  the  Constitution  in  question  ...  is  the 
only  rightful,  valid,  and  existing  Constitution  of  this  State,  and 
that  to  it  all  the  citizens  of  Virginia  owe  their  obedience  and  loyal 
allegiance.2 

Dodd  says: 

Another  reason  why  courts  would  hesitate  to  pronounce  invalid 
a  constitution  which  was  already  in  operation  is  that  a  court 
acting  under  such  constitution  would,  in  rendering  a  decision  of 
this  character,  necessarily  pronounce  against  its  own  competence 
as  a  court.  A  court  organized  under  a  government,  even  though 
that  government  be  revolutionary  in  character,  has  no  greater 
validity  than  the  government  under  which  it  acts,  and  would  hardly 
destroy  itself  by  holding  that  government  to  be  invalid.  This 
view  was  first  presented  by  a  dictum  of  Chief  Justice  Taney  in 
Luther  v.  Borden,  and  may  be  said  to  be  a  sound  one:  "And  if  a 
state  court  could  enter  upon  the  inquiry  proposed  in  this  case,  and 
should  come  to  the  conclusion  that  the  government  under  which 
it  acted  had  been  put  aside  and  displaced  by  an  opposing  govern- 
ment, it  would  cease  to  be  a  court,  and  be  incapable  of  pronouncing 
a  judicial  determination  upon  the  question  it  undertook  to  try."  3 

And  he  adds  that 

Courts  must  pursue  a  more  liberal  policy  in  passing  upon  the 
acts  of  a  convention,  especially  after  they  have  been  approved  by 

1  Linde  v.  Robinson  (1917),  160  N.  W.  512. 

2  Taylor  v.  Commonwealth  (1903),  101  Va.  829,  831.  And  cf.  Miller  v.  John- 
son  (1892),  92  Ky.  589. 

3  Dodd,  pp.  101-102.  Cf.  Brittle  v.  People  (1873),  2  Neb.  198,  214; 
Loomis  v.  Jackson  (1873),  6  W.  Va.  613,  708;  Koehler  v.  Hill  (1883),  60  la. 
543,  608,  614;  Luther  v.  Borden  (1849),  7  How.  1,  40;  "Trial  of  Dorr,"  p.  38. 
See  pp.  157-158,  supra. 


216  CONSTITUTIONAL  CONVENTIONS 

the  people,  than  it  has  [sic]  pursued  in  interpreting  the  consti- 
tutional restrictions  placed  upon  the  legislative  power  to  propose 
amendments.1 

If  lapse  of  time  and  acquiescence  by  the  people  and  govern- 
ment will  give  validity  to  constitutional  changes  made  under 
the  authority  of  the  constitution,  then  a  fortiori,  as  Dodd 
suggests,  with  respect  to  changes  made  by  extraconstitutional 
means. 

If  the  reconvening  of  the  Kentucky  convention  of  1890  was 
valid,  although  unauthorized  by  the  convention  act,  and  the 
constitution  promulgated  by  it  became  the  constitution  of  the 
State,2  this  rather  upsets  a  pretty  little  theory  which  might 
otherwise  be  deduced  and  which  has  been  deduced  by  some 
writers  on  the  subject.  It  has  been  said  that  any  irregularities 
on  the  part  of  either  the  legislature  or  the  convention  are  cured 
when  the  people  accept  the  changed  constitution  at  a  regular 
election.  In  other  words,  that  the  object  of  the  whole  procedure 
is  to  submit  amendments  to  the  people,  and  that  it  matters  not 
how  legally  this  is  done,  so  long  as  it  is  done.  Judge  Morton 
may  have  had  this  theory  in  mind  when  he  said  in  the  Massa- 
chusetts convention  of  1853 : 

Whether  we  sit  legally  or  illegally,  whether  we  are  here  by 
right  or  by  usurpation,  if  the  people  choose  to  adopt  what  we  sub- 
mit to  them,  it  then  becomes  authority  —  not  because  it  comes  from 
a  legally  constituted  body,  but  because  the  people  choose  to 
adopt  it.3 

But  in  the  Kentucky  case,  there  was  no  such  curing  sub- 
mission to  popular  vote,  because  in  that  case  the  unauthorized 
act  was  done  by  the  convention  after,  rather  than  before,  the 
special  election. 

Thus  we  are  forced  to  fall  back  on  the  theory  that  an  amend- 
ment obtained  by  the  convention  method  derives  its  validity 
not  from  the  passage  of  the  convention  act  by  the  legislature  or 
its  ratification  by  the  voters,  not  from  the  election  of  the  dele- 
gates to  the  convention,  not  from  any  action  by  the  convention 
itself,  and  not  even  from  the  acceptance  of  the  amendments 
by  popular  vote;  but  rather  from  the  mere  acquiescence  in  the 

1  Dodd,  p.  103.  2  See  p.  183,  supra, 

"  Deb.  Mass.  Conv.  1853,  Vol.  I,  p.  74. 


THE  DOCTRINE  OF  ACQUIESCENCE  217 

result  on  the  part  of  the  old  government  and  of  the  people  at 
large. 

Thus  amendment  by  extraconstitutional  convention  rests  not 
on  the  submission  of  the  amendment  to  the  people,  but  rather 
on  the  submission  to  the  amendment  by  the  people. 

The  Massachusetts  Supreme  Court  in  1833  alluded  to  this 
"  sanction  by  the  assent  of  the  people."  1 

And  it  is  clear  that  if  President  Tyler  had  not  come  to  the 
rescue  of  the  landlords  of  Rhode  Island  in  1841,  by  suppressing 
the  People's  Constitution  with  Federal  troops,2  Thomas  Wilson 
Dorr  would  have  been  seated  as  governor,  and  his  constitution, 
unlawful  though  its  inception,  would  have  become  the  supreme 
law  of  Rhode  Island  through  being  sanctioned  by  the  assent  of 
the  people.  This  was  a  purely  spontaneous  convention,  but  so 
also  were  the  Union  governments  of  Virginia  and  West  Vir- 
ginia and  the  many  successful  conventions  of  the  Revolutionary 
War. 

The  following  quotations  support  the  doctrine  of  acquiescence, 
set  forth  in  this  chapter: 

Such  irregularly  enacted  changes  may,  however,  be  ratified  by 
the  subsequent  acquiescence  of  the  People,  as  well  as  by  their 
formal  vote;  and  any  act  of  the  existing  Government  in  recognition 
of  such  irregular  constitutional  changes  should  be  regarded  as  such 
acquiescence  and  ratification  by  the  people.3 

If  that  instrument  was  valid,  as  the  supreme  law,  it  was  be- 
cause the  people  had  tacitly  expressed  their  assent  to  it  by  electing 
officers  under  it,  and  by  acquiescing  in  its  provisions.4 

It  will  be  inferred  from  the  foregoing  that  the.  acquiescence 
which  may  give  validity  to  an  excessive  exercise  of  power  by  a 
Convention  must  involve  more  than  a  mere  affirmative  vote  of  the 
qualified  electors.  These  have  no  power  to  authorize  or  to  condone 
a  breach  of  constitutional  duty;  they  can  neither  make  nor  repeal 
nor  suspend  the  operation  of  a  law.  They  are  not  "the  people" 
in  any  case  where  they  act  without  law  or  beyond  the  law.  The 
acquiescence  which  ratifies  or  validates  an  act  otherwise  void  is 
that  of  no  single  department  or  functionary,  save  as  that  depart- 
ment or  functionary  is  supported  by  the  consenting  judgment  of 

1  Opinion  of  Justices  (1833),  6  Cush.  573. 

2  See  pp.  21,  22,  supra. 

3  Braxton,  VII  "Va.  Law  Reg.,"  79,  9G-97. 

4  Jameson,  p.  519. 


218  CONSTITUTIONAL  CONVENTIONS 

the  sovereign  whose  voice  it  speaks.  It  is  the  acquiescence  of  the 
sovereign  community,  clearly  manifest  and  continuous,  that  is 
alone  effectual.  As  to  the  particular  acts  which  are  to  manifest 
that  judgment,  or  the  length  of  time  over  which  they  should 
extend,  no  precise  rule  can  be  given.  The  most  that  can  be  said 
is,  that  when  the  sovereign  body  has  clearly  moved,  and  that  move- 
ment gives  evidence  of  irresistible  force  and  of  continuance,  the 
various  systems  of  officials,  constituting  the  existing  government, 
must  heed  and  bow  to  it,  or  go  down  before  it.  Acquiescence, 
though  silent  and  scarcely  visible,  is  such  a  movement.1 

The  convention  or  congress  which  in  its  broadest  sense  made  that 
constitution  was  assembled  without  sanction  of  law.  It  was  com- 
posed of  delegates  elected  at  the  instance  of  a  committee  of  citi- 
zens .  .  .  this  body  proceeded  to  frame  and  adopt  a  constitution, 
which  was  not  submitted  to  the  people  for  ratification  .  .  .  Never- 
theless, from  the  time  that  instrument  was  promulgated  until  1844, 
it  was  the  fundamental  instrument  of  government  of  this  state, 
submitted  to  by  the  legislative,  executive  and  judicial  departments 
of  the  government,  and  also  by  the  people  of  this  state,  as  having 
the  force  of  a  constitution.2 

It  has  even  been  asserted  that  a  popular  refusal  to  call  a  new 
convention  is  a  ratification  of  the  old  constitution: 

By  the  Act.  No.  33  of  an  Extraordinary  Session  of  the  General 
Assembly,  of  this  year,  a  proposition  to  hold  a  constitutional 
convention  and  adopt  a  new  Constitution  was  submitted  to  the 
people,  and  was  rejected  by  the  electors  voting  in  the  election 
called  for  that  purpose  last  August.  This,  in  my  humble  opinion, 
was  an  express  ratification  of  the  Constitution  of  1913.3 

In  spite  of  all  the  foregoing,  we  must  remember  that  acqui- 
escence does  not  validate  the  means,  but  merely  the  result. 
Thus  Jameson  says: 

Before  closing  the  discussion  of  the  principles  regulating  the 
legitimate  call  of  Constitutional  Conventions,  one  remark  is 
necessary  to  guard  against  misconstruction.  A  Constitution,  or 
an  amendment  to  a  Constitution,  originating  in  a  Convention 
justly  stigmatized  as  illegitimate,  may,  notwithstanding  its 
origin,  become  valid  as  a  fundamental  law.     This  may  happen 

1  Jameson,  pp.  541-542. 

2  Bott  v.  Secy,  of  State  (1898),  62  N.  J.  L.  107,  118-119. 
8  Foley  v.  Dem.  Com.  (1915),  70  So.  104, 105. 


THE  DOCTRINE  OF  ACQUIESCENCE  219 

...  by  the  mere  acquiescence  of  the  sovereign  society.  Such  a 
ratification  of  the  supposed  Constitution  or  amendment  would  not, 
however,  legitimate  the  body  from  whom  the  Constitution  or 
amendment  proceeded.  That  no  power  human  or  divine  could  do, 
because,  by  the  hypothesis,  such  body  was  in  its  origin  illegitimate 
.  .  .  The  ratification  by  the  acquiescence  of  the  sovereign,  would 
be  a  direct  exercise  of  sovereign  power,  illegal  doubtless,  but  yet 
standing  out  prominently  as  a  fact,  as  such  finding  in  the  original 
overwhelming  power  of  the  sovereign  a  practical  justification, 
which  it  would  be  folly  to  gainsay.1 

On  the  whole,  we  may  conclude  that  acquiescence  will  validate 
an  illegal  constitution,  and  nonacquiescence  will  invalidate  a 
legal  constitution.  Thus  we  revert  in  the  end  to  fundamental 
principles,  particularly  the  principle  that  all  governments 
derive  their  just  powers  from  the  consent  of  the  governed, 
rather  than  from  any  compliance  with  legal  formalities. 

1  Jameson,  p.  112. 


Chapter  XVIII 
CONCLUSIONS 

What  are  the  conclusions  to  be  drawn  from  the  discussion 
contained  in  this  book? 

It  has  seemed  best  to  the  author  to  collect  all  these  conclu- 
sions in  a  final  chapter.  In  every  case  in  which  there  is  not  a 
fair  preponderance  of  precedent  and  authority  in  favor  of  any 
given  conclusion,  that  fact  will  appear.  So  that  the  following 
represents  a  summary  of  the  law  of  constitutional  conventions. 


Written  constitutions  are  an  American  institution,  based 
upon  the  following  four  ideas:  to  wit,  that  charters  of  govern- 
ment should  be  in  writing,  that  there  exist  certain  inherent 
rights  which  should  be  asserted  in  these  charters,  that  these 
charters  should  be  superior  to  mere  statutes,  and  that  these 
charters  are  contracts  between  each  citizen  and  the  whole 
State.1 

The  convention,  as  a  distinct  body  for  the  framing  or  altera- 
tion of  constitutions,  was  originated  in  America  during  the 
Revolutionary  War.2 

Since  then  there  have  gradually  developed  two  leading 
methods  of  amending  constitutions:  i.  e.,  by  the  regular  legis- 
lature (now  possible  in  every  State  except  New  Hampshire), 
or  by  a  convention  (now  possible  in  every  State  except  Rhode 
Island);  in  either  case,  almost  always  requiring  a  submission 
of  the  proposed  changes  to  the  people.3 

In  twelve  States,  amendment  is  now  possible  by  direct  popu- 
lar initiative,  without  the  interposition  of  either  the  legislature 
or  a  convention.4  V 

1  See  pp.  1-2,  supra.  2  See  pp.  2-8,  supra. 

8  See  pp.  8-10,  supra.  *  See  p.  9,  supra. 


CONCLUSIONS  221 


II 


Government  in  America  is  based  upon  the  theory  of  popular 
sovereignty;  the  people  governing  through  representatives.1 

The  term  "the  people' '  means  the  people  as  organized  into 
the  State,  rather  than  as  a  collection  of  individuals.2 

All  persons,  men  and  women,  infants  and  adults,  comprise 
"the  people."3 

The  people  can  speak  only  through  their  authorized  repre- 
sentatives, the  legal  voters.  Therefore  the  term  "the  people" 
is  often  used  to  mean  the  mouthpieces  of  the  people.4 

These,  in  turn,  can  represent  the  people  only  at  an  election 
duly  called  and  held.  It  is  only  at  such  an  election  that  the 
minority  can  be  bound  by  the  action  of  the  majority;  and  the 
non- voters  be  bound  by  the  action  of  those  who  vote.5 

When  a  part  of  the  people,  or  even  a  majority  of  them, 
act  outside  the  forms  of  law,  they  have  no  right  to  bind 
the  restA 

The  people  have  the  right  to  change  their  form  of  government 
at  will,  using  whatever  method  suits  them.7 

This  is  a  fundamental  right,  which  constitutions  are  power- 
less to  deny,  restrict,  or  limit  as  to  method.8 

The  people  may  exercise  this  right  in  any  one  of  three  ways : 
(1)  by  some  authorized  procedure;  (2)  by  a  lawful  act  represent- 
ing the  whole  people;  or  (3)  by  acquiescing  in  a  spontaneous 
act  of  a  part  of  the  people.9 

An  authorized  procedure  is  one  which  has  the  sanction  of 
Congress  in  the  case  of  a  territory,  or  of  the  constitution  in  the 
case  of  a  State.10 

An  extraconstitutional  movement  for  the  alteration  of  the 
constitution,  derives  its  validity  from  the  inherent  power  of  the 
people.11 

A  spontaneous  movement  becomes  effective  only  by  subse- 
quent popular  acquiescence,  produced  usually  by  force.12 

With  respect  to  the  constitutionality  of  any  given  method  of 
amendment,  it  may  be  either  (1)  authorized;  (2)  permitted  by 

1  See  pp.  11-12,  supra.  2  See  pp.  18,  20-28,  supra. 

3  See  p.  17,  supra.  4  See  p.  17,  supra. 

5  See  pp.  16-22,  supra.  6  See  pp.  16-22,  supra. 

7  See  p.  12,  supra.  8  See  pp.  14,  15,  supra. 

9  See  pp.  15,  24,  supra.  10  See  p.  15,  supra. 

u  See  p.  15,  supra.  n  See  pp.  22-24,  supra. 


222  CONSTITUTIONAL  CONVENTIONS 

not  being  prohibited;   (3)  prohibited;   or  (4)  beyond  the  con- 
stitution's control.1 

Anything  beyond  the  constitution's  control  enjoys  exactly  the 
same  status,  regardless  of  whether  the  constitution  attempts 
to  authorize,  or  to  prohibit  it,  or  merely  remains  silent  on  the 
subject.2 

m 

The  word  "constitutional,"  in  the  phrase  "constitutional 
convention,"  does  not  refer  to  the  constitutionality  of  the 
convention.3 

Any  dispute  as  to  whether  or  not  a  convention  is  a  "revolu- 
tion" is  merely  a  dispute  over  definitions,  for  the  word  "revolu- 
tionary" may  equally  well  mean  "unlawful  and  violent"  or 
merely  "unauthorized  by  the  constitution."  It  is  used  in  the 
latter  sense  in  this  book.4 

Each  of  the  three  classes  of  changes  in  constitutions  —  i.  e. 
authorized,  popular,  and  spontaneous  —  may  take  the  form 
of  a  convention;  thus  giving  us  three  sorts  of  conventions.5 

IV 

Spontaneous  conventions,  not  being  bound  by  law,  can 
furnish  us  with  no  useful  precedents.6 

Conventions  unauthorized  by  the  constitution  have  so  often 
been  held  in  the  United  States  that  it  is  now  too  late  to  question 
their  validity.7 

They  are  lawful  in  at  least  ten  of  the  twelve  States  whose 
constitutions  impliedly  prohibit  them  by  expressly  authorizing 
another  method  of  amendment.8 

Implied  prohibition  is  as  effective  as  express  prohibition.9 

Popular  conventions  have  been  successfully  held  on  five 
occasions,  in  spite  of  express  prohibition.10 

Such  conventions  are  not  held  under  the  constitution,  for 
under  the  constitution  they  would  be  ^constitutional.11 

There  is  some  basis  for  the  theory  that  even  when  a  consti- 

1  See  pp.  25-26,  supra.  2  See  p.  26,  supra.     ^ 

8  See  p.  30,  supra.  4  See  pp.  31-33,  supra. 
B  See  p.  34,  supra.  6  See  p.  34,  supra. 

7  See  pp.  38-41,  supra.  8  See  pp.  41-42,  supra. 

9  See  pp.  43,  48,  supra.  10  See  p.  49,  supra. 
u  See  pp.  45-46,  supra. 


CONCLUSIONS  223 

tution  purports  to  authorize  a  convention,  the  convention  really 
derives  its  authority  from  a  higher  source;  and  that  the  pro- 
visions in  the  constitution,  like  those  in  a  convention  act  passed 
by  the  legislature,  merely  serve  to  provide  the  means  for  the 
exercise  of  a  superior  right,  inherent  in  the  pepple.1 

Conventions  called  by  the  people,  speaking  through  their 
electorate  at  a  regular  election,  are  of  unquestionable  validity; 
and  are  extra-  or  supra-constitutional,  rather  than  constitu- 
tional.2 


The  people  enact  the  convention  act,  where  they  invoke 
the  initiative.3 

Where  the  constitution  requires  that  a  convention  act  be 
referred  to  a  popular  vote,  the  voters  call  the  convention.4 

Where  the  constitution  permits  the  legislature  to  call  a 
convention,  it  is  the  act  of  the  legislature  alone,  unless  we  hold 
that  the  people  ratify  the  action  by  not  invoking  the  referen- 
dum, or  by  voting  under  the  act.5 

It  is  arguable  that  a  convention  called  by  the  people  under 
authority  granted  by  the  constitution  stands  upon  no  different 
footing  than  if  the  constitution  withheld  this  authority.6 

In  the  absence  of  applicable  constitutional  provisions,  legis- 
latures have  sometimes  called  conventions  without  taking  a 
popular  vote;  but  the  validity  of  such  conventions  nowadays 
may  be  doubted.7 

The  passing  of  a  convention  act  is  not  within  the  legislative 
powers  of  the  legislature.8 

Where  the  legislature  submits  the  convention  act  to  a  popular 
vote,  it  is  clear  that  the  voters  enact  the  act.9 

The  same  is  probably  true  when  the  people  vote  on  the  mere 
question  of  holding  a  convention,  under  an  act  which  already 
purports  to  have  been  passed  by  the  legislature.10 

By  analogy,  a  similar  constitutional  provision  may  become  a 
popular  enactment.11 

1  See  pp.  50-52,  supra.  2  See  pp.  48,  54-55,  supra. 

3  See  p.  58,  supra.  4  See  pp.  59-60,  supra. 

B  See  p.  60,  supra.  6  See  pp.  60-61,  supra. 

7  See  pp.  61,  66-68,  supra.  8  See  pp.  61-65,  supra. 

9  See  p.  78,  supra.  10  See  pp.  68-72,  supra. 

U    Soo  r»     77     mmm 


U  See  p.  77,  supra. 


224  CONSTITUTIONAL  CONVENTIONS 

Thus  it  is  possible  that  all  provisions  —  whether  statutory 
or  in  constitutions  —  for  the  holding  of  conventions  are  in 
reality  given  their  entire  validity  by  popular  action  thereunder.1 

Nevertheless,  the  people  have  not  the  machinery  to  hold  a 
convention,  unless  they  are  assisted  either  by  the  legislature 
or  the  constitution.2 

It  is  preferable  that  this  machinery  be  provided  in  detail 
by  the  constitution,  as  the  people  then  will  not  be  subject  to 
the  whim  of  the  legislature,  but  may  have  a  convention  when- 
ever they  desire  to  exercise  their  unquestionable  right  to  have 
one.3 

The  only  action  which  could  be  characterized  as  distinctly 
that  of  the  legislature  alone,  would  be  for  the  legislature  both 
to  call  the  convention  and  elect  the  delegates,  without  any 
popular  participation  at  any  stage  of  the  proceedings.4 

VI 

A  state  constitution  is  a  legislative  act  of  the  people.5 

There  is  a  marked  distinction  between  the  legislative  powers 
of  the  people  and  the  legislative  powers  of  the  legislature.6 

In  exercising  the  legislative  method  of  amendment,  the  legis- 
lature acts  as  a  convention,  being  specially  empowered  thereto; 
but  with  this  difference,  that  it  is  much  more  strictly  bound  to 
the  terms  of  its  warrant  of  authority  than  is  an  ordinary  con- 
vention.7 

The  legislature  owes  its  powers,  in  this  connection,  to  an 
express  grant.8 

As  to  whether  the  legislature  can  act  as  an  ordinary  con- 
vention without  a  similar  express  grant,  the  authorities  are 
divided.9 

It  is  clear,  however,  that  the  legislature  cannot  claim  this 
right  under  its  general  grant  of  legislative  powers.10 

The  only  possible  difference  between  Indiana  (where  the 
legislature  cannot  turn  itself  into  a  convention)  and  North 
Dakota  (where  it  can)  lies  in  the  theory  that  Indiana,  by  striking 

1  See  p.  74,  supra.  2  See  pp.  75-77,  supra. 

3  See  pp.  76-77,  supra.  ^  4  See  p.  74,  supra. 

6  See  p.  80,  supra.  6  See  pp.  80-82,  supra. 

7  See  pp.  82-83,  supra.  8  See  p.  83,  supra. 

9  See  pp.  83-84,  85-88,  supra.  10  See  pp.  84-85,  supra. 


CONCLUSIONS  225 

the  convention  provision  from  her  constitution,  has  manifested 
an  intention  never  again  to  have  a  convention  of  any  sort.1 

VII 

The  convention,  although  called  at  irregular  intervals,  is 
really  a  fourth  branch  of  the  government,  and  hence  should 
enjoy  the  same  independence  from  each  of  the  three  regular 
branches  as  they  do  from  each  other.2 

The  Governor  cannot  veto  an  initiative  statute,  which  either 
calls  a  convention  or  prescribes  the  details.3 

The  Governor  cannot  veto  a  legislative  act  which  takes  a 
popular  vote  on  calling  a  convention,  under  provisions  in  the 
constitution,  but  can  probably  veto  one  which  prescribes  the 
details.4 

If  the  constitution  provides  for  both  the  popular  vote  and 
the  details,  the  Governor  cannot  prevent  the  holding  of  the 
convention.5 

The  authorities  disagree  as  to  whether  the  Governor  can  veto 
a  convention  act  which  is  unauthorized  by  the  constitution.6 

All  the  foregoing  gubernatorial  interference  is  exercised, 
however,  under  the  Governor's  legislative,  rather  than  under 
his  executive,  powers.7 

In  his  executive  capacity,  the  Governor  is  often  the  authorita- 
tive official  to  decide  whether  or  not  a  new  constitution  is  legal.8 

Similarly,  the  Federal  executive  has  the  power  to  settle  the 
question,  acting  under  either  of  two  clauses  in  the  Federal 
Constitution.  One  of  these  clauses  guarantees  a  republican 
form  of  government  to  each  State;  the  other  authorizes  the 
president  to  maintain  order  in  any  State  which  requests  it.9 

The  Governor  participates  to  some  extent  in  this  Federal 
interference,  by  requesting  it.10 

vni 

The  question:  "Can  the  legislature  amend  the  convention 
act?"  involves  three  questions:  namely,  (1)  The  general  power 

1  See  p.  87,  supra.  2  See  pp.  89-91,  supra. 

3  See  p.  91,  supra.  4  See  pp.  91-92,  supra. 

B  See  p.  91,  supra.  6  See  pp.  92-93,  supra. 

7  See  p.  93,  supra.  8  See  pp.  93-94,  supra. 

9  See  pp.  94-96,  supra.  10  See  p.  95,  supra. 


226  CONSTITUTIONAL  CONVENTIONS 

of  the  legislature  to  interfere  with  conventions;  (2)  Who 
enacted  the  act?  and  (3)  Can  the  legislature  amend  that  which 
the  people  have  enacted?1 

Assuming  the  premises,  i.  e.  that  the  subject  matter  of  the 
amendment  is  within  the  delegated  powers  of  the  legislature, 
but  that  the  people  enacted  the  original  act;  then  it  is  certain 
that  the  legislature  cannot  amend  it.2 

The  legislature  can  amend  a  convention  act  passed  solely  by 
it,  unless  we  adopt  the  theory  that  the  people  have  assumed 
responsibility  for  the  act  by  participating  in  an  election  held 
under  it.3 

IX 

The  question  of  the  power  of  the  legislature  to  control  the 
convention  depends  largely  upon  who  passes  the  convention  act.4 

If  the  legislature  passes  it,  it  probably  is  not  binding  upon  the 
convention;  if  the  people  pass  it,  it  probably  is  binding.5 

The  confusion  of  precedents  and  authorities  upon  this  point 
is  largely  due  to  a  failure  to  analyze  the  source  of  the  statute 
in  question.6 

It  is  clear  that  the  legislature  cannot  bind  a  convention  ) 
authorized  by  the  constitution.7. 

/    The  convention  would  lose  a  large  part  of  its  usefulness,  if  it    \ 
(were  subject  to  legislative  control.8  / 

Where  conventions  have  acceded  to  legislative  restrictions, 
this  merely  proves  that  the  restrictions  seemed  reasonable,  not 
that  they  were  binding.9 

Perhaps,  however,  the  legislature  can  impose  restrictions  upon 
a  convention  to  the  same  extent  that  it  can  upon  the  judiciary; 
but  this  may  be  doubted  on  the  ground  that  the  convention  is 
a  body  of  the  same  sort  as  the  legislature,  but  of  a  higher  order.10 

It  is  clear  that  the  legislature  has  no  power  to  abolish  a  pend- 
ing convention,  except  perhaps  in  cases  of  great  emergency.11 

But  the  legislature  may  possibly  be  able  indirectly  to  abolish 
a  convention,  by  withholding  funds.12 

1  See  p.  97,  supra.  2  See  pp.  98-104,  supra. 

8  See  p.  98,  supra.  *  See  pp.  120-121,  supra. 
5  See  pp.  108-114,  121-125,  supra.  6  See  p.  121,  supra. 

1  See  pp.  106-108,  supra.  8  See  p.  108,  supra. 

9  See  pp.  108-111,  supra.  10  See  pp.  114-115,  supra. 
11  See  pp.  115-116,  supra.  n  See  pp.  117-118,  supra. 


CONCLUSIONS  227 

In  case  the  legality  of  a  convention  is  in  doubt,  the  legis- 
lature may  be  in  a  position  to  determine  it,  by  recognition  or 
non-recognition,  or  by  soliciting  Federal  intervention.1 

The  legal  standing  of  a  convention  may,  in  some  instances, 
if  a  Federal  question  is  involved,  be  determined  by  Congress.2 

The  legislature  is  in  a  position  to  direct  the  course  of  popular 
control  of  conventions,  by  framing  the  convention  act.3 


The  electorate  can  amend  a  convention  act,  regardless  of 
whether  it  was  originally  passed  by  the  legislature  alone,  by 
the  legislature  and  the  electorate,  or  by  the  electorate  alone.4 

No  one,  except  the  people  as  a  whole,  can  acquire  a  vested 
right  in  a  convention  movement.5 

The  electorate  can  abolish  the  convention  at  any  time,  or 
merely  nullify  its  work  by  refusing  to  accept  it.6 

The  people  have  a  right  to  instruct  their  delegates,  but  the 
instructions  will  have  a  moral  rather  than  a  legal  force.7     ^ 

XI 

The  conventions  of  the  Revolution  exercised  sovereign  powers, 
by  necessity.8 

Similarly  with  respect  to  secession  (not  strictly  constitutional 
conventions),  reconstruction,  and  territorial  conventions.9 

These  furnish  no  precedent  for  State  conventions  in  times 
of  peace;  but  the  objection  is  to  the  weight,  rather  than  to  the 
admissibility,  of  the  evidence.10 

The  "doctrine  of  convention  sovereignty"  so-called,  repre- 
sents merely  oratorical  flights  of  fancy,  and  goes  no  further  in 
actual  practice  than  to  assert  the  possession  by  the  convention 
of  incidental  and  emergency  powers,  and  its  independence  from 
legislative  control.11 

A  convention  has  no  right  to  legislate.12 

1  See  p.  118,  supra.  2  See  p.  119,  supra. 

3  See  pp.  123-124,  supra.  4  See  p.  125,  supra. 

6  See  p.  125,  supra.  6  See  p.  125,  supra. 

7  See  pp.  125-127,  supra.  8  See  pp.  128-129,  supra. 
9  See  pp.  129-130,  supra.  10  See  p.  130,  supra. 

u  See  pp.  131-135,  supra.  »  See  pp.  139-142,  supra. 


228  CONSTITUTIONAL  CONVENTIONS 

But  it  can  validate  its  legislation  by  inserting  it  in  the  con- 
stitution.1 
Or  by  a  blanket  validating-clause  in  the  constitution.2 
Or  by  submitting  the  legislation  to  the  people.3 
If  the  constitution  or  the  convention  act  exempts  the  con- 
vention from  the  necessity  of  submitting  its  work  to  the  people, 
it  may  legislate  to  its  hearts  content.4 
|      A  convention  may  pass  such  rules  and  ordinances  as  are 
\  necessarily  incident  to  its  business  of  constitution-framing,  or 
as  are  necessary  to  putting  its  constitution  into  effect.5 

The  principle  whereby  territorial  and  reconstruction  conven- 
tions have  exercised  powers  entrusted  by  the  Federal  Consti- 
tution to  the  State  legislatures,  may  possibly  be  extended  to 
State  conventions.6 

A  complete  overturn  of  the  existing  government  is  apt  to  be 
more  successful  than  partial  interference  would  be.7 


XII 

The  courts  require  a  strict  compliance  with  the  constitutional 
provisions  relative  to  amendment  by  the  legislative  method.8 

But  are  not  so  strict  with  respect  to  constitutional  provi- 
sions relative  to  the  convention  method.9 

It  is  an  open  question  whether  courts  will  interfere  with  the 
convention  method  in  matters  not  covered  by  the  constitution, 
although  probably  they  ought  not  to.10 

It  is  clear  that  they  cannot  and  will  not  interfere  in  the 
internal  affairs  of  a  convention.11 

The  weight  of  authority  is  that  the  courts  will  not  interfere 
after  the  adoption  of  a  change  by  the  people.12 

The  question  then  becomes  political  rather  than  legal.13 

But  this  doctrine  may  not  apply  to  amendments  which  do 
not  go  to  the  root  of  the  whole  structure  of  the  government.14 

The  value  of  a  judicial  determination  of  the  validity  of  a 

1  See  pp.  142-144,  supra.  2  See  p.  142,  supra. 

3  See  pp.  Y&-146,  supra.  4  See  p.  146,  supra. 

5  See  pp.  146-147,  supra.  6  See  p.  147,  supra. 

7  See  p.  148,  supra.  8  See  pp.  149-151,  supra. 

9  See  pp.  150-151,  supra.  M  See  pp.  151-153,  supra. 

n  See  pp.  152-153,  supra.  "  See  pp.  153-157,  supra. 
13  See  pp.  155-158,  162-163,  supra.      M  See  pp.  155-156,  supra. 


CONCLUSIONS  229 

government  is  minimized  by  the  fact  that  a  court  is  bound  to 
decide  in  favor  of  the  constitution  under  which  it  holds  office.1 

A  different  question  is  presented  by  the  case  of  judicial  in- 
terference with  the  convention,  in  matters  outside  the  conven- 
tion's proper  functions.2 

It  is  clear  that  a  court  will  stop  an  ultra  vires  act  by  a  con- 
vention, as  readily  as  it  would  stop  an  ultra  vires  act  by  any 
other  department.3 

The  Federal  courts  have  no  power  to  interfere  with  a  conven- 
tion, except  in  case  of  the  violation  of  the  United  States  Consti- 
tution, or  where  some  other  Federal  question  is  involved,  such 
as  the  election  of  Congressmen.4 

The  courts  will  assist  a  convention  to  secure  its  rights; 
much  the  same  as  they  would  assist  any  other  branch  of  the 
government.5 

In  States  where  the  courts  do  not  interpret  their  advisory 
duties  too  strictly,  they  will  probably  assist  the  convention  by 
judicial  advice,  much  the  same  as  they  would  assist  any  other 
branch  of  the  government.6 

XIII 

Constitutional  provisions  for  the  holding  of  a  convention 
are  probably  merely  directory.7  v 

But,  like  a  convention  act,  they  may  be  made  mandatory  by.  g/ 
popular  action  thereunder.8 

The  constitution  cannot  prevent  the  holding  of  a  convention.9 

By  the  same  token,  it  should  not  be  able  to  restrict  a  con- 
vention.10 

The  constitution  has  absolutely  no  application  to  extracon- 
stitutional  conventions.11 

Unamendable  portions  of  a  constitution  may  be  amended  by 
a  convention,  although  not  by  the  legislative  method.12 

Conventions,  like  other  branches  of  the  State  government, 
are,  however,  bound  by  the  Federal  Constitution.13 

I  See  pp.  157-158,  supra.  2  See  pp.  158-160,  supra. 
3  See  p.  160,  supra.  A  See  pp.  160-162,  supra. 
5  See  p.  163,  supra.  6  See  pp.  163-164,  supra. 
7  See  p.  166,  supra.  8  See  pp.  166,  168,  supra. 
9  See  p.  166,  supra.  10  See  pp.  166-168,  supra. 

II  See  p.  168,  supra.  n  See  pp.  167-168,  supra. 
13  See  pp.  168-169,  supra. 


230  CONSTITUTIONAL  CONVENTIONS 

XIV 

A  convention  is  the  sole  judge  of  its  own  membership.1 

This  right  carries  with  it  the  power  to  provide  for  the  filling 
of  vacancies  and  to  expel  members.2 

It  can  hire  a  hall,  choose  officers  and  employees,  adopt  rules, 
purchase  supplies,  perpetuate  its  records,  and  arrange  for  all 
necessary  printing.3 

It  need  not  employ  the  regular  State  printer.4 

It  may  maintain  order  and  punish  both  members  and  out- 
siders for  direct  contempt.5 

It  can  pledge  the  State's  faith,  and  perhaps  its  credit,  for  its 
legitimate  expenses.6 

In  general,  it  has  all  powers  necessarily  incident  to  the  busi- 
ness delegated  to  it.7 

It  may  probably  reconvene  after  the  popular  adoption  of  its 
proposals,  to  codify  and  promulgate  the  amended  constitution; 
at  least  for  the  latter  purpose.8 

XV 

The  term  "officer"  in  a  constitution  means  a  person  holding 
office  under  that  constitution.9 

Thus,  although  delegates  to  an  unauthorized  convention  are 
"officers,"  they  are  not  "officers"  within  the  meaning  of  the 
constitution.10 

It  would  be  anomalous  for  the  delegates  to  take  an  oath  to 
support  that  which  they  have  assembled  to  overturn,  i.  e.  the 
State  constitution.11 

But,  as  the  Federal  Constitution  is  binding  upon  them,  they 
should  swear  to  support  it;  and  should  also  swear  to  perform 
faithfully  the  duties  of  delegate.12 

Delegates  are  entitled  to  the  same  privileges  and  immunities 
as  members  of  the  legislature.1 


13 


I  See  pp.  170-171,  supra.  2  See  pp.  171-172,  181,  supra. 
3  See  pp.  172-180,  supra.  4  See  p.  179,  supra. 

B  See  pp.  180-182,  supra.  6  See  pp.  177-178,  180,  supra. 

7  See  p.  184,  supra.  8  See  pp.  182-184,  supra. 

9  See  pp.  185-187,  supra.  10  See  p.  186,  supra. 

II  See  pp.  187-190,  supra.  «  See  pp.  190-191,  supra. 
13  See  pp.  191-192,  supra. 


CONCLUSIONS  231 

XVI 

Submission  of  amendments  to  the  people  is  necessary  when 
required  by  the  constitution  or  by  a  convention  act  which  the 
people  have  enacted.1 

And  there  is  some  authority  to  the  effect  that  the  work  of  an 
extraconstitutional  convention  is  not  valid  until  it  has  been 
ratified  by  a  popular  vote.2 

This  is  probably  true,  at  least  in  cases  in  which  the  conven- 
tion was  called  by  the  legislature  acting  alone.3 

The  legislature  cannot  change  the  time  for  submission;  for 
that  would  amount  to  amending  the  convention  act,  which  is 
impossible  if  the  people  originally  enacted  it;  and  would  amount 
to  legislative  interference,  which  also  is  illegal.4 

The  convention  can  change  the  time  for  submission,  even  if 
the  convention  act  is  popular  in  its  nature.5 

There  is  no  inherent  difference  between  a  new  constitution 
and  an  amended  constitution.6 

The  phrase  "specific  and  particular  amendment "  means 
merely  "amendment";  or,  at  the  most,  a  single  definite  propo- 
sition, as  distinguished  from  a  vague  general  need  for  change.7 

A  convention  called  to  make  a  general  revision  may  submit  a 
number  of  separate  amendments,  or  a  new  constitution,  or  a 
new  constitution  plus  a  few  separable  propositions.8 

Every  distinct  proposition,  not  vital  to  the  scheme  as  a  whole, 
ought  to  be  submitted  separately.9 

The  convention  probably  can  lawfully  enlarge  or  reduce  the 
electorate  to  which  it  submits  its  work,  subject  only  to  the  pro- 
visions of  the  Federal  Constitution.10 

In  the  absence  of  popular  directions,  the  convention  may 
lawfully  prescribe  all  the  details  for  submission  and  promulga- 
tion of  the  constitutional  changes  recommended  by  it.11 

XVII 

The  validity  of  all  constitutional  changes  rests,  in  the  last 
analysis,  upon  "the  assent  of  the  people."  12 

1  See  pp.  193-195,  supra.  2  See  pp.  195-196,  supra. 

3  See  p.  196,  supra.  4  See  pp.  196-197,  supra. 

6  See  pp.  197-198,  supra.  6  See  p.  198,  supra. 

7  See  pp.  198-200,  supra.  8  See  pp.  200-205,  supra. 
9  See  pp.  202-203,  supra.  10  See  pp.  205-212,  supra. 

11  See  pp.  212-213,  supra.  »  See  pp.  217-218,  supra. 


232  CONSTITUTIONAL  CONVENTIONS 

Lapse  of  time,  and  popular  and  governmental  acquiescence, 
will  cure  almost  any  informality.1 

But  this  cure  affects  merely  the  results,  and  does  not  relate 
back  and  validate  the  means.2 

The  validity  of  a  convention-born  amendment  rests  not  on 
the  submission  of  the  amendment  to  the  people,  but  rather  on 
the  submission  to  the  amendment  by  the  people.3 

All  governments  derive  their  just  powers  from  the  consent 
of  the  governed.4 

1  See  pp.  214-216,  supra.  2  See  p.  218,  supra. 

8  See  p.  217,  supra.  4  See  p.  219,  supra. 


INDEX 


Acquiescence,  doctrine  of,  214- 
219;  does  not  validate  means, 
218-219. 

Alabama,  constitution  of  1901,  113; 
convention  of  1865,  141 ;  conven- 
tion of  1867-68,  141;  convention 
of  1901,  111,  112-113;  conven- 
tions freed  from  legislature,  107; 
conventions  held  lawful  in,  40. 

Amendment,  legislative  method  of, 
82-85,  107,  149-150;  of  consti- 
tutions, 8-10;  of  convention  acts 
by  electorate,  125;  of  convention 
acts  by  legislature,  97-104;  of 
initiated  acts  by  legislature,  99- 
100;  set  aside  by  judiciary,  149- 
150,  153-158,  160-162;  specific 
and  particular,  198-200;  time  of, 
taking  effect,  197;  validity  of,  a 
political  question,  162-163;  va- 
lidity of,  determined  by  Congress, 
119;  validity  of,  determined  by 
Governor,  93-94;  validity  of,  de- 
termined by  legislature,  118;  va- 
lidity of,  determined  by  Presi- 
dent, 94-96. 

Analysis  of  questions,  33-37. 

Anglo-Saxon  origin  of  constitu- 
tions, 1. 

Annapolis  convention,  7. 

Appropriation  of  money  by  con- 
vention, 177,  178. 

Arizona,  constitution  of  1910,  193. 

Arkansas,  constitution  silent  on 
conventions,  9,  41;  convention 
of  1868,  207;  convention  of  1874, 
39;  conventions  in,  41;  poll  tax 
amendment  of  1892,  161. 

Arrest,  delegates  free  from,  191-192. 


Articles  of  Confederation,  United 
States  Constitution  violates,  39, 
49. 

Attwill,  Atty.  Gen.,  opinion  of,  on 
constitutionality,  43-45;  opinion 
of,  on  status  of  delegates,  186-187. 

Authorized  conventions,  constitu- 
tion may  be  disregarded  by,  48, 
51-52,  60;  made  independent  of 
legislature,  76-77,  106-108;  per- 
haps popular  in  nature,  50;  provi- 
sions for  calling,  58-60;  veto  can- 
not block,  91-92. 

"Authorized  procedure"  defined, 
15. 

Banks,  Nathaniel  P.,  Louisiana 
convention  of  1864,  182. 

Berlin  controversy,  102-103,  171- 
172. 

Bills  of  Rights,  do  not  " authorize' ' 
popular  conventions,  45,  53; 
quotations  from,  13-15. 

Braxton,  object  of  his  article,  128. 

Buchanan,  President,  Lecompton 
controversy,  103,  116,  196. 

Butler,  Benjamin  F.,  views  on  con- 
vention sovereignty,  133;  views 
on  revolution,  32-33. 

California,  convention  of  1849, 
175,  187. 

Calling  of  convention,  by  initiative, 
58;  by  legislature,  60,  66-68; 
by  people,  58-60,  69-74. 

Choate,  Rufus,  views  on  conven- 
tion act,  71. 

Classes  of,  constitutional  cases,  26; 
conventions,  33-35,  54. 


234 


INDEX 


Codification  of  constitution,  182- 
184. 

Colonies,  early  constitutions  of  the, 
3-8;  early  legislatures  of  the, 
2-3. 

Committees  of  convention,  174-177. 

Concord,  Mass.,  invented  the  con- 
vention, 7. 

Congress,  on  validity  of  State  con- 
vention, 118-119;  on  validity  of 
territorial  convention,  119;  ratifi- 
cation of  territorial  convention 
by,  20-21,  79;  restraint  of  terri- 
torial convention  by,  111. 

Connecticut,  charter  legislature 
continued  in,  3;  charter  until 
1818  in,  2,  4;  constitution  of  1818, 
193;  constitution  silent  on  con- 
ventions, 9,  41;  convention  of 
1818,  39;  convention  of  1902,  40; 
conventions  in,  41. 

Constitution,  British,  1. 

Constitution,  United  States,  bind- 
ing on  conventions,  132,  168-169; 
destroys  right  of  revolution?  15, 
168;  distinction  between  State 
and,  25-26;  duties  assigned  to 
legislatures,  147,  169;  origin  of, 
7-8;  ratification  of,  7,  8;  repub- 
lican government  guaranteed  by, 
11,  95-96;  two  methods  of 
amending,  9,  10;  unauthorized 
by  the  State  Constitutions,  39; 
violation  of  Articles  of  Confed- 
eration, 39,  49. 

Constitutional,  cases  neither,  nor 
unconstitutional,  26;  definition 
of,  25-26,  30;  four  classes  of, 
cases,  26. 

Constitutional  convention,  appro- 
priation of  money  by,  177,  178; 
calling  of,  by  legislature,  60,  66- 
68;  calling  of,  by  people,  58-60, 
69-74;  classes  of,  33-35,  54; 
codification  of  constitution  by, 
182-184;  committees  of,  174-177; 
congressional  interference  with, 
118-119;  constitution  cannot  pro- 
hibit,  39-43,    48-49;    contempt 


Constitutional  convention  —  contd. 
powers   of,    180-182;     contested 
elections  in,  170-171;    delegates 
are  not  "officers,"  185-187;   de- 
velopment  of,   in   Delaware,   4; 
development  of,  in  Massachusetts, 
4-5,   6,   7;    development   of,   in 
New   Hampshire,   6-7;    dissolu- 
tion of,  by  legislature,  115-116; 
election  of  members  of,  170-171; 
executive  interference  with,  91- 
96;  extraordinary  powers  claimed 
by,    128-141,    158-160;    Federal 
Constitution    binding    on,    168- 
169;  filling  vacancies  in,  171-173; 
fourth  branch  of  government,  89- 
91,  160;   idea  of  a  separate,  4,  6, 
7;  incidental  legislative  powers  of , 
146-147;     interference    with,    in 
general,  89-91;   internal  proced- 
ure of,  170-182,  187-190;    judi- 
cial advice  to,  163-164;    judicial 
aid  to,  163;   judicial  interference 
with,  150-153,  158-160;   legisla- 
tion   by,     139-147;     legislative 
control    of,     105-116,     120-122, 
123;    legislative  duties  of,  under 
U.  S.  Constitution,  147,  169;  leg- 
islative  interference   with,    116- 
118;  legislative  nature  of,  81,  90; 
legislature  as  a,  4,  79-88;  no  con- 
stitutional    provisions     for,     in 
twelve  States,  41 ;  oaths  of  mem- 
bers of,  108-109,  187-191;    offi- 
cers of,  173;  order  maintained  by, 
180-182;    origin  of,  1-8;    popu- 
lar control  of,    120-127;    provi- 
sions for,  in  early  constitutions, 
8-9;  provisions  for,  in  later  con- 
stitutions,   9-10;     printing    for, 
179-180;    privileges  of  members 
of,  191-192;  records  of,  178-179; 
resignation    of    delegates,     126; 
rules   of,    173-174;    sergeant-at- 
arms  of,  173,  180;    supplies  for, 
178;     term    not    felicitous,    30; 
usurpation  of  powers  by,    148- 
149;    vacancies  in,  171-173;  va- 
cating  of   offices   by,    138-139; 


INDEX 


235 


Constitutional  convention  —  contd. 
validity  of,  a  political  question, 
162-163;  validity  of,  determined 
by  Congress,  119;  validity  of,  de- 
termined by  Governor,  93-94; 
validity  of,  determined  by  legis- 
lature, 118;  validity  of,  deter- 
mined by  President,  94r-96.  (See 
also  Authorized,  Popular,  and 
Spontaneous  Conventions.) 

Constitutions,  Anglo-Saxon  origin 
of,  1;  cannot  prohibit  conven- 
tion expressly,  48-49;  cannot 
prohibit  convention  impliedly, 
39-43;  codification  of,  182-184; 
Colonial,  3-8;  conventions  not 
mentioned  in,  of  twelve  States, 
41;  delegates  not  officers  under, 
185-187;  four  elements  of,  2; 
framed  by  legislature,  3,  79-88, 
202;  legislative  acts  of  the  peo- 
ple, 80;  not  applicable  to  conven- 
tions, 50-52,  165-168;  setting 
aside  of,  by  judiciary,  149,  153- 
158;  validity  of,  a  political  ques- 
tion, 162-163. 

Contempt  powers  of  conventions, 
180-182. 

Contested  elections,  170-171. 

Convention  acts,  amendable  by 
people,  125;  derive  force  from 
legislature,  70-72;  derive  force 
from  people,  69-70,  71;  if  legis- 
lative, not  binding,  106-116;  if 
popular,  binding,  120-125;  In- 
diana, 1917,  not  submitted,  67- 
68;  legislature  cannot  amend, 
97-104;  not  ordinary  legislation, 
62-65,  80-83;  passed  by  legisla- 
ture alone,  66-68;  people  employ 
legislature  to  pass,  73-74,  100; 
reasonable  restrictions  in,  114; 
repeal  by  legislature,  115-116; 
should  be  submitted  to  people, 
66-68;  veto  of,  by  Governor,  91- 
93. 

Conventions  (see  Authorized, 
Constitutional,  Popular,  and 
Spontaneous  Conventions). 


Convention  sovereignty,  asserted, 
131-134;  denied,  135-138;  de- 
velopment of  theory  of,  134-135; 
instances  of,  138-141;  judicial 
interference,  158-160;  mere  ora- 
tory, 135;  not  suited  to  peaceful 
times,  128-129;  secession  caused 
by?  134. 

Dallas,  George  M.,  views  on 
sovereignty,  131-132. 

Declaration  of  Independence,  12, 
26-27. 

Delaware,  charter  legislature  con- 
tinued in,  3;  constitution  of  1776, 
48;  constitution  of  1796,  9,  12, 
59;  convention  of  1791,  40,  49; 
convention  of  1852,  40,  47,  51, 
166;   first  regular  convention?  4. 

Delegates,  abler  men  than  legisla- 
tors, 113;  contested  elections, 
170-171;  filling  vacancies,  171- 
173;  freedom  from  arrest,  191- 
192;  instructions  to,  126-127; 
newspapers  for,  178;  not  "offi- 
cers," 185-187;  oaths  of,  108, 
109,  187-191;  pay  of,  increased 
by  convention,  111;  privileges  of , 
191-192;  punishment  of,  for 
contempt,  180-181 ;  resignation 
of,  126;  stationery  for,  178; 
status  of,  185-192. 

Dissolution  of  convention,  by  leg- 
islature,  115-116. 

Divine  right,  120. 

Dog,  Story  of  disobedient,  50. 

Dorr's  Rebellion,  21-22,  95,  134, 
217;  Federal  court  does  not  in- 
terfere, 162;  influence  of,  on  R.  I. 
court,  57;  report  on,  23;  reason 
for  failure  of,  76. 

Election,  conduct  of,  by  conven- 
tion, 212-213;  voluntary,  in- 
effective, 19-20;  of  delegates, 
170-171;  electors  can  speak  only 
at  authorized,  18-20. 

Electorate,  call  of  convention  by, 
58-60,  69-74;    can  speak   only 


236 


INDEX 


Electorate  —  continued 

at  authorized  election,  18-20; 
constitutional  qualifications  not 
binding,  205-212;  opinion  of 
Massachusetts  court,  208-210; 
representative  nature  of,  16-18; 
submission  to  enlarged  or  re- 
duced, 205-212;  U.  S.  Constitu- 
tion provisions,  169,  212. 

Ex  necessitate,  47,  100. 

Ex  post  facto,  169. 

Executive  intervention,  91-96.  (See 
also  under  Governor,  Presi- 
dent.) 

Expressio  unius  est  exclusio  alterius, 
43,  49,  210. 

Extra-constitutional  conventions, 
55-56. 

Extra-legislative  power  to  submit 
act,  62-65,  80-83;  does  not 
exist  under  the  initiative,  100. 

Extraordinary  powers  claimed  by 
convention,  128-141,  158-160. 

Factional  convention  (see  Spon- 
taneous Convention). 

Federal  Constitution  (see  Consti- 
tution, U.  S.). 

Federal  judiciary,  Dorr's  Rebel- 
lion, 162;  interference  with  State 
amendments,  161-162. 

Florida,  constitution  of  1865,  144; 
convention  of  1865,  48,  52,  130- 
131. 

Four  branches  of  government,  89- 
91,  160. 

Fundamental  principles,    11-29. 

Georgia,  constitution  of  1776,  4,  8; 
constitution  of  1777,  4,  13;  con- 
stitution of  1789, 193;  convention 
of  1788,  48,  52,  111;  convention 
of  1789,  111;  convention  of  1833, 
39,  49,  108,  189;  convention  of 
1839,  39,  49;  convention  of  1867, 
181;  conventions  without  popu- 
lar vote,  60. 

Governor,  legislative  powers  of,  93; 
recognition  of  political  change  by, 


Governor  —  continued 

93-94;  requests  Federal  interven- 
tion, 95;  vetoes  the  convention 
act,  91-93. 

Greene,  William  B.,  views  on  revo- 
lution, 32. 

Illinois,  convention  of  1847,  132, 
187,  204;  convention  of  1862, 108, 
111,  132,  147,  182,  187,  188,  189, 
204;  convention  of  1869,  108, 
111,  176,  188,  207;  partial  suf- 
frage in,  210. 

Indiana,  constitution  silent  on  con- 
ventions, 9,  41;  convention  of 
1850,  39,  41,  51,  166,  187;  con- 
vention of  1918,  40,  42,  67-68, 
201,  205,  211;  conventions  held 
lawful  in,  42;  disregard  of  people 
in,  67-38;  legislative  constitu- 
tion in,  80;  partial  suffrage  in, 
210,   211. 

Initiative  and  referendum,  amend- 
ment by  legislature,  99-100;  call 
of  conventions  by,  58;  constitu- 
tion amendment  by,  107;  de- 
stroys legislatures'  power  to  sub- 
mit convention  act,  100;  States 
having,  9;  veto  not  possible 
under,  91. 

Instructions  to  delegates,  126-127. 

Interference  with  convention,  by 
Governor,  91-96;  by  judiciary, 
150-153,  15&-160;  by  legisla- 
ture, 116-118;  in  general,  89-91. 

Iowa,  convention  of  1857,  187,  188. 

Jameson,  object  of  his  book,  35,  97, 
105,  128. 

Johnson,  Andrew,  reconstruction 
conventions,  129-130. 

Judicial,  advice  to  convention,  163- 
164;  assistance  to  convention, 
163;  control  of  convention,  150- 
153,  158-160;  extension  of  own 
tenure,  214-215;  fondness  of  own 
jobs,  157-158;  setting  aside  con- 
vention's work,  153-158;  sui- 
cide, 157-158. 


INDEX 


237 


Kansas,  convention  of  1859,  207; 
Lecompton  convention  in,  103, 
116,  196;  Topeka  convention  in, 
20. 

Kentucky,  constitution  of  1792,  8; 
constitution  of  1799,  59;  consti- 
tution of  1850,  59;  constitution 
of  1891,  59,  193;  convention  of 
1849,  134,  187;  convention  of 
1890,  112,  183,  195,  216. 

Lecompton  convention,  103,  116, 
196. 

Legislation,  by  convention,  139- 
147;  convention  act  is  not,  62- 
65,  80-83;  incidental,  by  con- 
vention, 146-147;  inserted  in 
constitution,  142-144;  valid 
though  not  submitted,  145-146; 
validation  of,  by  people,  144-145. 

Legislative  interference,  by  inac- 
tion, 76-77,  116-117;  with  con- 
vention, 116-118. 

Legislative  method  of  amendment, 
growth  of,  8-10;  extra-legislative 
nature  of,  82-85;  judicial  con- 
trol of,  149-150;  legislative 
control  of,  107. 

Legislative  nature  of  convention, 
81,  90. 

Legislature,  abdicates  by  calling 
convention?  73;  agent  for  people, 
73-74,  100;  amendment  of  pop- 
ular statutes  by,  99-100;  as  a 
convention,  4,  79-88;  assistance 
of,  essential,  75,  117;  control  of 
conventions  by,  105-116,  120- 
122,  123;  constitutions  framed 
by,  3,  79-88,  202;  convention  act 
cannot  be  enacted  by,  alone,  66- 
68;  convention  act  not  amend- 
able by,  62-65,  80-83;  delegation 
to,  by  popular  vote,  73-74;  dele- 
gates chosen  by,  74;  direction 
of  popular  control  by,  123;  dis- 
solution of  convention  by,  115- 
116;  has  no  inherent  rights,  75; 
has  power  to  assist  people,  85; 
initiative    deprives,    of    power, 


Legislature  —  continued 

100;  powers  ex  necessitate,  47, 
100;  recognition  of  political 
change  by,  118. 

Lincoln,  Abraham,  dismembers  Vir- 
ginia, 95. 

Livingstone,  remarks  on  convention 
sovereignty,  131. 

Louisiana,  constitution  of  1812,  59; 
constitution  of  1913,  193,  218; 
constitution  silent  on  conven- 
tions, 9,  41;  convention  of  1812, 
187;  convention  of  1844,  187, 
188,  207;  convention  of  1852, 
39,  187,  207;  convention  of  1864, 
182;  convention  of  1879,  40; 
convention  of  1898,  40,  108,  141, 
142,  147,  189;  convention  held 
lawful  in,  40;  conventions  in,  41. 

Maine,  codification  of  1875,  168, 
184;  constitution  of  1819,  193; 
conventions  called  without  pop- 
ular vote,  60. 

Maryland,  constitution  of  1776,  4, 

8,  12,  126;  convention  of  1776, 
175,  187;  convention  of  1837,  20, 
134;  convention  of  1850,  40,  49, 
187;  convention  of  1864,  187,  207. 

Massachusetts,  charter  of,  206; 
charter  until  1780  in,  2,  4;  con- 
stitution silent   on   conventions, 

9,  41;  constitution  of  1780,  4,  6, 
8,  12,  193,  203;  convention  of 
1778,  4,  5,  175;  convention  of 
1780,  175,  187,  206;  convention 
of  1820,  40,  187,  203;  con- 
vention of  1853,  40,  47,  102-103, 
171-172,  187,  198,  210;  conven- 
tion of  1917,  40,  205;  conventions 
in,  41;  provincial  congress  of,  3, 
5;  qualifications  of  voters  in,  206, 
207-210;  referendum  in,  64. 

Michigan,  admission  to  statehood, 
20;  constitution  of  1908,  77; 
convention  of  1835,  207;  con- 
vention of  1850,  187;  convention 
of  1908,  111-112,  163,  176,  197, 
204;   conventions  freed  from  leg- 


238 


INDEX 


Michigan  —  continued 
islature,  77,  106-107;  legislative 
commission  of  1873,  79;  legisla- 
tive submission  in  1874,  202;  par- 
tial suffrage  in,  210. 

Minnesota,  convention  of  1857, 179, 
187,  188. 

Mississippi,  constitution  silent  on 
conventions,  9,  41;  convention 
of  1890,  140,  142,  147;  conven- 
tions in,  41. 

Missouri,  Civil  War  in,  129-130; 
constitution  of  1875,  77;  con- 
vention of  1845,  40,  187;  con- 
vention of  1861,  40,  138-139; 
convention  of  1865,  40,  138,  141, 
146, 147, 207;  convention  of  1890, 
40;  conventions  freed  from  legis- 
lature, 77,  106-107. 

Morton,  Marcus,  views  of,  47,  69, 
196,  210. 

"Natick  Cobbler,"  102. 

Nebraska,  admission  to  statehood, 
79;  Governor  of,  blocks  conven- 
tion in  1903,  92;  partial  suffrage 
in,  210. 

New    Hampshire,    constitution    of 

1776,  4,  6,  8;  constitution  of 
1778,  193;  constitution  of  1784, 
9,  12;  constitution  of  1792,  193; 
convention  of  1778,  4,  6;  con- 
vention of  1781-83,  4,  6;  con- 
vention of  1791,  203;  convention 
of  1850,  203;  convention  of 
1889,  197;  convention  of  1912, 
204;  legislature  thwarts  people, 
77;   no  legislative  method  in,  9. 

New  Hampshire  Grants,  resolu- 
tions of,  6,  7;  origin  of  conven- 
tion idea?  7. 

New  Jersey,  constitution  of  1776, 
4,  8;  constitution  silent  on  con- 
ventions, 9,   41;    convention  of 

1777,  175;  convention  of  1844, 
40,  187,  206;  conventions  in, 
41. 

New  Mexico,  constitution  of  1910, 
193. 


New  York,  constitution  of  1777,  4, 
8;  constitution  of  1846,  76;  con- 
stitution of  1894,  76-77;  conven- 
tion act  vetoed,  1820,  204;  con- 
vention of  1801,  40;  convention 
of  1821,  40,  131,  187,  193,  203, 
206;  convention  of  1846,  40,  101- 
102,  203,  204;  convention  of  1867, 
111,  197,  207;  convention  of 
1894,  76,  117,  152-153,  170-171, 
176;  convention  of  1915,  204; 
conventions  freed  from  legisla- 
ture, 76-77,  106-107;  popular 
vote  of  1886  thwarted,  76,  92, 
117. 

North  Carolina,  constitution  of 
April,  1776,  4;  constitution  of 
Dec,  1776,  4,  8,  12;  convention 
of  1835,  40,  108,  187,  189;  con- 
vention of  1875,  108,  189. 

North  Dakota,  constitution  silent 
on  conventions,  9,  41;  conven- 
tions held  lawful  in,  40,  41; 
judges  extend  own  tenure  in,  214, 
215;  legislative  constitution  in, 
85-88;  opinion  of  attorney  gen- 
eral of,  86-88;  partial  suffrage 
in,  210. 

Oaths,  by  delegates,  108-109,  187- 
191;  by  State  officers,  190;  re- 
quired by  three  constitutions,  189. 

Officers,  delegates  are  not,  185-187; 
of  convention,  173. 

Ohio,  constitution  of  1802,  59; 
convention  of  1850,  126,  187,  188; 
convention  of  1912,  176,  204; 
partial  suffrage  in,  210. 

Oklahoma,  constitution  of,  143; 
territorial  convention  (1907), 
141-142,  143,  152. 

Order,  maintenance  of,  180-182; 
rules  of,  173-174. 

Oregon,  convention  of  1857,  204. 

Origin,  of  constitutions,  1;  of  con- 
ventions,   1-8. 

Parker,  Joel,  views  on  convention 
act,  70,  115. 


INDEX 


239 


Pennsylvania,  constitution  of  1776, 
4,  8,  12;  constitution  of  1838, 
109;  constitution  of,  silent  on 
conventions,  9,  41;  convention 
of  1776,  175,  187;  convention  of 
1789,  48,  51, 175, 187;  convention 
of  1837,  40,  187,  203-204;  con- 
vention of  1872,  40,  109,  111,  132, 
151;  conventions  in,  41;  theory 
of  popular  origin,  72-73. 

People,  amendment  of  convention 
act  by,  125;  can  only  speak 
through  electors,  16-19;  inform- 
ing the,  relative  to  changes,  213; 
instruction  of  delegates  by,  126; 
right  of,  to  change  government, 
12-16;  submission  of  constitu- 
tion to,  193-212;  submission  of 
convention  act  to,  59,  66-68,  74; 
who  are  the,  17-20,  23. 

"People's  Constitution,"  21-22, 
95. 

Peters,  Onslow,  views  on  sover- 
eignty, 132. 

Philadelphia  convention,  7-8. 

Political  question,  determined  by 
Governor,  94;  determined  by 
judiciary,  162-163;  determined 
by  President,  94-96. 

Popular  control  of  convention,  120- 
127;  legislature  can  direct  the, 
123;   valueless,  123. 

Popular  conventions,  called  by 
people,  61-71,  72-75;  definition 
of,  38;  ex  necessitate,  47;  extra- 
constitutional,  55-56;  illegal,  43; 
legal  though  prohibited,  49,  55; 
legality  of,  38-57;  legislative  as- 
sistance essential,  75;  legislative 
control  of,  108-116;  legislative 
control  of,  not  authorized,  45;  not 
within  legislative  powers,  62-65; 
objections  raised  to,  in,  42; 
revolutionary?  31-33. 

Popular  sovereignty,  11-15. 

Popular  vote,  makes  legislature 
agent,  73-79;  for  convention 
ratifies  act,  61-72;  for  delegates 
ratifies  act,  72-73. 


President,    interference   with   con- 
vention, 94-96. 
Printing  for  convention,  179-180. 
Privileges  of  delegates,  191-192. 

Reconstruction  Conventions, 
call  of,  not  submitted  to  people, 
67;  no  precedent  for  present 
ones,  129-130;  submitted  con- 
stitutions, 163. 

Records  of  convention,  178-179. 

Representative  government,  11, 126. 

Republican  form  of  government,  11, 
95-96,  169. 

Resignation  of  delegates,  126. 

Restriction  of  convention,  by  legis- 
lature, 106-116;  by  people,  120- 
125;  reasonable,  114. 

Revolution,  definition  of,  17,  31-33; 
right  of,  15-16,  53,  168. 

Rhode  Island,  charter  legislature 
continued  in,  3;  charter  until 
1842,  2,  4;  constitution  silent  on 
conventions,  9;  convention  of 
1824,  40;  convention  of  1832,  40; 
convention  of  1841,  40,  206;  con- 
vention of  1842,  40,  206;  con- 
ventions illegal  in,  9,  41;  Dorr's 
Rebellion  in,  21-22,  95,  134,  217; 
legislative  constitutions  re- 
jected, 79,  202;  partial  suffrage 
in,  210;  "People's  Constitution" 
in,  21-22,  95;  prohibition  amend- 
ment of  1866,  161;  submission 
of  constitutions  in  1898  and 
1899,  79;  submission  of  ques- 
tion in  1853,  41. 

Right  to  change  government,  12- 
15;  destroyed  by  U.  S.  Consti- 
tution? 15;  three  methods  of  ex- 
ercise, 15-16. 

Rules  of  convention,  173-174. 

Secession  conventions,  call  of, 
not  submitted  to  people,  67;  did 
not  submit  constitutions,  163; 
no  precedent  for  modern  ones, 
129-130. 

Sergeant-at-arms,  173,  180. 


240 


INDEX 


Shaw,  Lemuel,  distinction  between 
State  and  U.  S.  constitutions,  25. 

Singleton,  General,  views  on  con- 
vention sovereignty,   132. 

South  Carolina,  constitution  of 
1776,  4,  8,  12;  constitution  of 
1778,  4;  convention  of  1790,  9, 
40;  convention  of  1865,  145; 
convention  of  1895,  140,  142,  147. 

Specific  and  particular  amendment, 
198-200. 

Spontaneous  convention,  depends 
on  force,  23;  examples  of,  20-23; 
not  valuable  precedents,  34. 

State  of  nature,  suggested,  1;  im- 
possible, 26-28. 

Submission,  definition  of,  31;  by 
the  people,  217;  of  amendments, 
electorate,  205-212;  of  amend- 
ments, form,  198-205;  of  amend- 
ments, method,  212-213;  of 
amendments,  necessity,  193-196; 
of  amendments,  time,  196-198; 
of  call  for  convention,  59,  66-68, 
74;  separate,  of  amendments, 
198-205. 

Suffrage  (see  Electors). 

Supplies,  purchase  by  convention, 
178. 

Tennessee,  constitution  of  1796, 
59;  constitution  of  1865,  94; 
convention  of  1796,  175,  187; 
convention  of  1834,  187,  207; 
convention  of  1870,  40. 

Territory,  admission  to  statehood, 
15;  ratification  by  Congress,  20- 
21,  79;  restraint  by  Congress, 
111;  validity  of  convention  de- 
termined, 119. 

Texas,  constitution  silent  on  con- 
ventions, 9,  41;  convention  of 
1845,  207;  convention  of  1868, 
143;  convention  of  1876,  40; 
conventions  in,  41. 


Tyler,  John,  interferes  in  Rhode 
Island,  21,  95,  217. 

Unconstitutional  (see  Constitu- 
tional). 

United  States,  Annapolis  conven- 
tion, 7;  Constitution  (see  Con- 
stitution, U.  S.);  convention  of 
1787,  7-8,  175. 

Usurpation  by  convention,  148-149. 

Vacancies,  filling  of,  171-173. 

Validity  of  convention,  a  political 
question,  162-163;  determined 
by  Congress,  119;  determined  by 
Governor,  93-94;  determined  by 
legislature,  118;  determined  by 
President,  94-96;  popular  con- 
vention valid,  38-57. 

Vermont,  constitution  of  1777,  8; 
constitution  silent  on  conven- 
tions, 9,  41 ;  convention  of  1777, 
175;  convention  of  1786,  7,  193; 
convention  suggested  in  1908,  41. 

Veto,  initiative  and  referendum  not 
subject  to,  91;  of  authorized 
convention  act,  91-92;  of  popu- 
lar convention  act,  92-93. 

Virginia,  constitution  of  1902,  156; 
convention  of  1829,  40,  187,  207; 
convention  of  1850,  40,  187,  207; 
convention  of  1901,  103-104,  112, 
189,  194;  dismemberment  of,  23, 
95,  217;  first  legislature  of,  3. 

Voters  (see  Electors). 

Webster,    Daniel,    summary    of 

fundamentals  by,  24-25. 
West  Virginia,  admission  to  Union, 

22-23,   95,   217;    convention   of 

1863,  207. 
Wilson,  Henry,    in   Massachusetts 

Convention,  1853,  102. 
Wisconsin,  convention  of  1847, 187. 


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